What Did Mork Say to Mindy When He Forgot to Register? Pannu, Pannu! What Pannu v. Holder Reveals About Crimes Involving Moral Turpitude and Failure-to-register Statutes

• Publication year: 2022

45 Creighton L. Rev. 617. WHAT DID MORK SAY TO MINDY WHEN HE FORGOT TO REGISTER? PANNU, PANNU! WHAT PANNU V. HOLDER REVEALS ABOUT CRIMES INVOLVING MORAL TURPITUDE AND FAILURE-TO-REGISTER STATUTES

WHAT DID MORK SAY TO MINDY WHEN HE FORGOT TO REGISTER? PANNU, PANNU! WHAT PANNU V. HOLDER REVEALS ABOUT CRIMES INVOLVING MORAL TURPITUDE AND FAILURE-TO-REGISTER STATUTES

Shane E. Strong - '13

I. INTRODUCTION

In the Act of March 3, 1891,(fn1) Congress introduced the legal term crimes involving moral turpitude ("CIMTs") into immigration law by barring immigrants convicted of CIMTs from the United States.(fn2) Pursuant to contemporary immigration law, if a court finds that an alien has committed a CIMT, the alien is potentially inadmissible to or removable from the United States.(fn3) Congress, however, has never defined the term CIMT and the United States Supreme Court has characterized the term as indefinable.(fn4) As a result, federal courts have applied differing approaches to determine what constitutes a CIMT.(fn5) In 2008, however, in In re Silva-Trevino,(fn6) the United States Attorney General called for a three-tier inquiry to decide whether a crime constitutes a CIMT.(fn7) First, the court should apply the categorical approach.(fn8) Second, when the categorical approach illustrates that the statute of conviction encompasses both morally turpitudinous conduct and non-morally turpitudinous conduct, the court should proceed to the modified categorical approach.(fn9) Third, when records of conviction shed no light on the inquiry, the court should consider any evidence beyond the record of conviction to determine if the alien's conduct constituted a CIMT.(fn10) This step is the Attorney General's novel, third step.(fn11) When courts have applied CIMT analysis to failure-to-register statutes, the results have varied.(fn12)

In Pannu v. Holder,(fn13) the Department of Homeland Security ("DHS"), the successor to the Immigration and Naturalization Service, argued for the removal of Gursharan Singh Pannu.(fn14) The DHS argued that Pannu's four criminal convictions rendered him removable for two or more CIMTs.(fn15) These convictions were petty theft, two counts of indecent exposure, and failing to register as a sex offender.(fn16) The Board of Immigration Appeals ("BIA") determined that failing to register categorically constituted a CIMT in light of In re Tobar-Lobo,(fn17) in which the BIA found that a conviction under California Penal Code section 290(g)(1)(fn18) constituted a CIMT.(fn19) On appeal, the

United States Court of Appeals for the Ninth Circuit ordered the BIA to revisit Tobar-Lobo and apply the Attorney General's analysis in Silva-Trevino to Pannu's conviction for failing to register as a sex offender.(fn20)

First, this Note will discuss the facts and holding of Pannu.(fn21) This Note will then discuss federal circuit court cases and BIA decisions concerning whether a conviction for failing to register as a sex offender constitutes a CIMT.(fn22) Next, this Note will argue that the Ninth Circuit correctly ordered a review of the BIA's decision in Tobar-Lobo in light of the Attorney General's analysis in Silva-Tre-vino.(fn23) Finally, this Note will conclude by suggesting a contemporary solution to this 200-year-old problem.(fn24)

II. FACTS AND HOLDING

In Pannu v. Holder,(fn25) the United States Court of Appeals for the Ninth Circuit ordered the Board of Immigration Appeals ("BIA") to apply the categorical analysis for crimes involving moral turpitude ("CIMTs") that the United States Attorney General in In re Silva-Tre-vino(fn26) outlined.(fn27) In 1990, Gursharan Singh Pannu entered the United States as a lawful permanent resident.(fn28) In 1994, a court convicted Pannu of misdemeanor indecent exposure.(fn29) Later that year, he was convicted of indecent exposure for a second time which required Pannu to register as a sex offender.(fn30) In 2001, a court convicted him of misdemeanor theft.(fn31) In 2002, Pannu was convicted under California Penal Code section 290(g)(1)(fn32) for failing to register as a sex offender.(fn33)

In January 2004, the Department of Homeland Security ("DHS") charged Pannu with removability for two or more convictions of CIMTs and removability for an aggravated felony conviction.(fn34) The DHS later withdrew the removal charge based on aggravated felony.(fn35) Pannu conceded that his petty theft conviction constituted a CIMT but argued that the indecent exposure and failure-to-register convictions did not constitute CIMTs.(fn36) The immigration judge ordered Pannu removed, finding Pannu had been convicted of two or more CIMTs.(fn37)

Pannu appealed to the BIA, arguing that his convictions for misdemeanor indecent exposure, felony indecent exposure, and failing to register did not constitute CIMTs.(fn38) The BIA held that indecent exposure convictions categorically constituted CIMTs.(fn39) Pannu then appealed to the Ninth Circuit.(fn40) The Ninth Circuit determined convictions of indecent exposure were not categorically CIMTs.(fn41) The Ninth Circuit remanded the BIA's decision and ordered the BIA to apply either the modified categorical approach to Pannu's indecent exposure convictions or to consider if Pannu's conviction for failing to register constituted a CIMT.(fn42)

Upon remand, the BIA again determined Pannu removable.(fn43) The BIA relied upon the 2007 case, In re Tobar-Lobo,(fn44) which stated a conviction under California Penal Code section 290(g)(1) for failing to register as a sex offender categorically constituted a CIMT.(fn45) Thus, Pannu's section 290(g)(1) conviction coupled with his conceded theft CIMT rendered him removable for two or more convictions of CIMTs.(fn46) The BIA found it unnecessary to apply the modified categorical approach to Pannu's indecent exposure convictions.(fn47)

Pannu once again appealed the BIA's decision to the Ninth Circuit and the Ninth Circuit again remanded the case to the BIA.(fn48) Initially, the Ninth Circuit noted that the law had changed significantly since the BIA's first Pannu decision in which the BIA had relied upon Tobar-Lobo.(fn49) Pannu was convicted of the same failure-to-register statute at issue in Tobar-Lobo; therefore, the BIA found its decision in Tobar-Lobo controlled its decision in Pannu.(fn50) After the BIA's decision in Tobar-Lobo, however, the Ninth Circuit considered in Plasencia-Ayala v. Mukasey(fn51) whether a similar Nevada failure-to-register statute constituted a CIMT.(fn52) In Plasencia-Ayala, the Ninth Circuit concluded that Nevada's failure-to-register statute did not constitute a CIMT.(fn53) Rejecting the BIA's reasoning in Tobar-Lobo, the Ninth Circuit explained that a conviction under the statute, which imposed strict liability for failing to register, was not willful or a breach of duty to society, and as such, could not be a CIMT.(fn54)

Then, the Ninth Circuit revisited Plasencia-Ayala in Marmolejo-Campos v. Holder,(fn55) an en banc Ninth Circuit opinion.(fn56) In Marmolejo-Campos, the Ninth Circuit held it should give deference according to Chevron v. Natural Resources Defense Council(fn57) to the BIA's decisions of whether a crime is a CIMT if the decisions rely on the BIA's prior precedential decisions dispositive of the issue in the matter.(fn58) Continuing, the Ninth Circuit clarified that in Marmolejo-Campos, it only overruled Plasencia-Ayala for applying de novo review but did not overrule the merits of Plasencia-Ayala's CIMTs analysis.(fn59) Next, the Ninth Circuit noted that following the BIA's first Pannu decision, the Attorney General issued Silva-Trevino to produce a standardized approach for determining what crimes constitute CIMTs.(fn60) In light of the intervening developments, the Ninth Circuit remanded and ordered the BIA to apply the correct definition of moral turpitude illustrated in Silva-Trevino and to determine if Pannu's conviction for failing to register as a sex offender constituted a CIMT.(fn61) The Ninth Circuit expressed no opinion regarding the Attorney General's third step to the analysis of CIMTs, which permitted assessment of evidence beyond the record of conviction.(fn62)

III. BACKGROUND

A. IN RE TOBAR-LOBO: THE BIA FOUND THAT FAILING TO REGISTER AS A SEX OFFENDER IS CATEGORICALLY A CRIME INVOLVING MORAL TURPITUDE

The Board of Immigration Appeals ("BIA") in In re Tobar-Lobo(fn63) found that failing to register as a sex offender categorically constituted a crime involving moral turpitude ("CIMT").(fn64) The Department of Homeland Security ("DHS") charged Hugo Yahir Tobar-Lobo with removability for two or more convictions of CIMTs.(fn65) In February 1998, Tobar-Lobo was convicted under California Penal Code section 290(g)(1)(fn66) for failing to register as a sex offender.(fn67) Subsequently, in May 2003, Tobar-Lobo was convicted of two counts of grand theft.(fn68)

The immigration judge ("IJ") concluded that a conviction under California's failure-to-register statute did not constitute a CIMT and terminated the removal proceedings.(fn69) The IJ reasoned that specific intent was necessary to find the conviction constituted a CIMT.(fn70) The IJ further reasoned that California's failure-to-register statute did not constitute a CIMT because the statute did not require specific intent for a conviction.(fn71) On appeal, the DHS argued that because the California statute facially required willfulness, the IJ was incorrect...