Plasencia Ayala v. Mukasey ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
REYNALDO PLASENCIA-AYALA, 
Petitioner, No. 06-73728
v.
 Agency No.
A91-966-521
MICHAEL B. MUKASEY,* Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
December 3, 2007—San Francisco, California
Filed February 7, 2008
Before: Jerome Farris, Robert R. Beezer, and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge Thomas
*Michael B. Mukasey is substituted for his predecessor, Alberto R.
Gonzales, as Attorney General of the United States, pursuant to Fed. R.
App. P. 43(c)(2).
1767
1770 PLASENCIA-AYALA v. MUKASEY
COUNSEL
Bryan M. Westhoff, LeBoeuf, Lamb, Greene & Macrae, Chi-
cago, Illinois, argued the cause for the petitioner; William J.T.
Brown, LeBoeuf, Lamb, Greene & Macrae, New York, New
York, was on the brief.
Liza S. Murcia, Office of Immigration Litigation, Civil Divi-
sion, United States Department of Justice, Washington, D.C.,
argued the cause for the respondent; Peter D. Keisler, Assis-
tant Attorney General, Civil Division, and David V. Bernal,
Assistant Director, United States Department of Justice,
Washington, D.C., were on the brief.
OPINION
THOMAS, Circuit Judge:
This case presents the question of whether failing to regis-
ter as a sex offender in violation of Nev. Rev. Stat.
§ 179D.550 is a crime involving moral turpitude within the
meaning of 8 U.S.C. § 1182(a)(2)(A)(i)(I). We conclude that
it is not, and grant the petition for review from the contrary
decision of the Board of Immigration Appeals (“BIA”).
I
A
Reynaldo Plasencia-Ayala is a native and citizen of Mex-
ico. He was born on May 18, 1968 and first came to the
Unites States in 1986 at the age of eighteen. On December 1,
PLASENCIA-AYALA v. MUKASEY 1771
1990, Plasencia-Ayala was admitted for permanent residence
in Chicago, Illinois.
Plasencia-Ayala has two criminal convictions relevant to
this appeal. On June 4, 2002, Mr. Plasencia-Ayala pled guilty
to the offense of open or gross lewdness, in violation of Nev.
Rev. Stat. § 201.210, a “gross misdemeanor.” Plasencia-Ayala
was sentenced to a term of nine months in Washoe County
Jail, and ordered to pay fees and costs.
The open or gross lewdness conviction is considered a sex-
ual offense under Nevada law. Nev. Rev. Stat.
§ 179D.410(11). As a convicted sexual offender, Plasencia-
Ayala is required to register with the local law enforcement
agency within 48 hours of being present in any Nevada
county or city. Nev. Rev. Stat. § 179D.460(1-3). Although the
burden is on the sexual offender to register, Nevada has
adopted a variety of procedures to ensure that offenders ini-
tially register and are informed of their registration responsibili-
ties.1 Nevada law provides that following the imposition of a
sentence for a sexual offense, the court shall “[i]nform the
defendant of the requirements for registration” and “[r]equire
the defendant to read and sign a form stating that the require-
ments for registration have been explained to him.” Nev. Rev.
Stat. § 176.0927(1)(b)-(c). The court is also required to notify
the “Central Repository” of the conviction, which in turn must
“notify the local law enforcement agency so that a record of
registration may be established.” Nev. Rev. Stat.
§§ 176.0927(1)(a), 179D.450(1). Additionally, for offenders
like Plasencia-Ayala who are incarcerated, the “Department
of Corrections or a local law enforcement agency in whose
facility the sex offender is incarcerated” shall “[i]nform the
1
Nevada law expressly provides that the failure of the court or relevant
law enforcement agency to inform the sexual offender of the registration
requirements does not affect the duty of the sex offender to register and
comply with the provisions for registration. Nev. Rev. Stat.
§§ 176.0927(2), 179D.450(4).
1772 PLASENCIA-AYALA v. MUKASEY
sex offender of the requirements for registration.” Nev. Rev.
Stat. § 179D.450(3). There is no evidence in the record
regarding whether the Nevada court or relevant law enforce-
ment agency informed Plasencia-Ayala of his registration
responsibilities. In his guilty plea for open or gross lewdness,
Plasencia-Ayala stated that “I understand that I will have to
register as a sex offender.”
After completing his sentence for the open or gross lewd-
ness conviction, Plasencia-Ayala returned to his home in
Reno, where he had resided prior to his conviction. The police
subsequently discovered that Plasencia-Ayala was not regis-
tered as a sex offender. On March 11, 2004, Plasencia-Ayala
pled guilty to “Failure to Register as a Sex Offender” in viola-
tion of Nev. Rev. Stat. §§ 179D.460, 179D.550 and 193.130,
a felony. In his plea, Plasencia-Ayala admitted that “I did,
willfully and unlawfully fail to register” with the relevant law
enforcement agencies. At his removal hearing, Plasencia-
Ayala indicated that he was aware that he was required to reg-
ister, but thought that because the authorities knew where he
lived he only needed to notify them if he moved. Plasencia-
Ayala was sentenced to a prison term of 12-32 months, and
ordered to pay fees and costs.
B
On February 14, 2006, the government filed a Notice to
Appear (NTA) in which it charged that Plasencia-Ayala was
removable under 8 U.S.C. § 1227(a)(2)(A)(ii) for having
committed two crimes involving moral turpitude. Plasencia-
Ayala’s removal hearing was held on April 24, 2006. Follow-
ing the hearing, the immigration judge issued an oral decision
holding Plasencia-Ayala removable on the ground that he had
committed two crimes involving moral turpitude, and denying
his requests for cancellation of removal and voluntary depar-
ture.
The IJ held that Plasencia-Ayala’s convictions for gross
lewdness and failure to register constituted crimes involving
PLASENCIA-AYALA v. MUKASEY 1773
moral turpitude. The IJ found that the proliferation of sexual
offender laws “indicates a clear demand by the people of the
United States to have knowledge of the location and the
crimes of individuals who must register as sex offenders.”
The IJ concluded that due to the dangerousness of sexual
offenders and the risk of recidivism, “this crime is considered
morally turpitudinous and of such a nature that the people of
the State of Nevada find it to be vile, base and of a nature to
offend their morals.” Finally, the IJ found that while Mr.
Plasencia-Ayala was eligible for cancellation of removal, he
was undeserving of the discretionary relief.
Plasencia-Ayala appealed the IJ’s decision to the BIA. In
his brief, Plasencia-Ayala argued that the failure to register as
a sex offender could not constitute a crime of moral turpitude
because it can occur without a willful mens rea, and that the
IJ erred in his discretionary denial of cancellation of removal
by not giving sufficient weight to Plasencia-Ayala’s long
years of residence, family ties and limited criminal history.
In a July 21, 2006 order, the BIA dismissed Plasencia-
Ayala’s appeal. In its decision, the BIA first observed that
Plasencia-Ayala did not dispute that his conviction for gross
lewdness constituted a crime of moral turpitude and deemed
the issue abandoned. The BIA then turned to Plasencia-
Ayala’s conviction for failure to register. It concluded that
Nev. Rev. Stat. § 179D.550 “punishes some behavior that
might be considered a crime involving moral turpitude, such
as providing false information to police, as well as some non-
turpitudinous behavior, such as the catch-all ‘otherwise vio-
lates’ provision.” The BIA concluded that Plasencia-Ayala’s
failure to register was a crime of moral turpitude, agreeing
with the IJ that “when the respondent willfully failed to regis-
ter, he attempted to avert being labeled a sex offender, thereby
preventing the members of the community from protecting
their families from him.”
1774 PLASENCIA-AYALA v. MUKASEY
In its decision, the BIA did not address Mr. Plasencia-
Ayala’s contention that the IJ had erred by denying his
request for cancellation of removal.
On July 27, 2006, Plasencia-Ayala timely filed a petition
for review with this Court. Plasencia-Ayala subsequently filed
a motion to reconsider with the BIA on April 11, 2006, argu-
ing that the BIA had erroneously found him removable and
had failed to address the IJ’s denial of his request for cancel-
lation of removal. In a May 15, 2007 order, the BIA granted
the motion to reconsider but again dismissed the appeal. In its
decision, the BIA began by explaining the scope of its review:
“Because we previously did not address the respondent’s
argument challenging the Immigration Judge’s discretionary
denial of his cancellation of removal application, we will
reconsider the appeal for the limited purpose of addressing
that argument.” At the conclusion of its decision, the BIA
again stated that it was “grant[ing] the motion for the limited
purpose of addressing the respondent’s challenge” to the
denial of cancellation.
Nonetheless, the BIA went on to address the issue of
whether Plasencia-Ayala’s conviction for failure to register
constituted a crime involving moral turpitude. The BIA
largely adopted the analysis from its recent decision Matter of
Tobar-Lobo, 24 I. & N. Dec. 143, 146-47 (BIA 2007), in
which it held that the willful2 failure to register under the Cal-
ifornia sex offender registration statute represents a base or
depraved act. Following Matter of Tobar-Lobo, the BIA
determined that because convictions under the Nevada regis-
tration statute do not require proof of any specific state of
2
The Supreme Court of California has broadly interpreted the California
registration statute’s “willfulness” requirement to include instances where
an individual has merely forgotten to register. People v. Barker, 96 P.3d
507, 515 (Cal. 2004); but see People v. Sorden, 113 P.3d 565, 570 (Cal.
2005) (holding that the failure to register because of a severe depression
does not constitute a “willful” failure to register).
PLASENCIA-AYALA v. MUKASEY 1775
mind, they could not “categorically” amount to crimes of
moral turpitude. However, the BIA concluded that under the
“modified categorical” approach, Plasencia-Ayala’s “willful
and unlawful” failure to register was morally turpitudinous.
Finally, the BIA found that the IJ had properly exercised its
discretion in denying Plasencia-Ayala’s application for can-
cellation of removal. Plasencia-Ayala has not petitioned for
review of the BIA’s May 15, 2007 order.
II
Where the BIA conducts a de novo review and issues its
own decision, rather than adopting the IJ’s decision as its
own, we review the BIA’s decision. Simeonov v. Ashcroft,
371 F.3d 532, 535 (9th Cir. 2004). To the extent the BIA
incorporates the IJ’s decision as its own, we review both the
decisions of the BIA and IJ. Kalubi v. Ashcroft, 364 F.3d
1134, 1137 n.3 (9th Cir. 2004).
We review de novo “whether a state statutory crime consti-
tutes a crime involving moral turpitude.” Navarro-Lopez v.
Gonzales, 503 F.3d 1063, 1067 (9th Cir. 2007) (en banc)
(internal quotations omitted). The government argues that the
BIA’s decision is entitled to Chevron deference because it
was based on its prior precedential decision and cited Ninth
Circuit precedent. However, as the government acknowl-
edges, we have rejected that Chevron deference should apply
to the BIA’s interpretation of the “amorphous phrase” “crime
involving moral turpitude” because the BIA has done nothing
to particularize the meaning of the term. Galeana-Mendoza v.
Gonzales, 465 F.3d 1054, 1058 n.9 (9th Cir. 2006). The BIA’s
construction of a state statute is likewise due no deference
because it is “not a statute which the BIA administers or has
any particular expertise in interpreting.” Garcia-Lopez v. Ash-
croft, 334 F.3d 840, 843 (9th Cir. 2003).
III
The government argues that the BIA’s May 15, 2007 deci-
sion granting Plasencia-Ayala’s motion to reconsider de facto
1776 PLASENCIA-AYALA v. MUKASEY
vacated and superseded its July 21, 2006 order. Accordingly,
the government argues, the July 21, 2006 order is no longer
“final” and this Court is divested of jurisdiction to review it.
We disagree.
Under 8 U.S.C. § 1252(a)(1), this Court only has jurisdic-
tion to review “final” orders of removal. An order of removal
made by the immigration judge at the conclusion of a removal
proceeding becomes final upon “a determination by the Board
of Immigration Appeals affirming such order.” 8 U.S.C.
§ 1101(a)(47)(B)(I); 8 C.F.R. § 1241.1(a). To seek judicial
review of an order of removal, an alien must file a petition for
review with the court of appeals for the judicial circuit in
which the immigration judge completed the proceedings
within 30 days of the BIA’s issuance of the final order. See
8 U.S.C. § 1252(b)(1)-(2).
In addition, the alien may simultaneously file a motion for
reconsideration within 30 days of the BIA’s issuance of the
final order. See 8 U.S.C. § 1229a(c)(6); 8 C.F.R. § 1003.2(b).
It is within the BIA’s discretion to grant or deny a motion for
reconsideration. 8 C.F.R. § 1003.2(a). “If the motion to recon-
sider is granted, the decision upon such reconsideration shall
affirm, modify or reverse the original decision made in the
case.” 8 C.F.R. § 1003.2(i). The BIA’s decision to grant or
deny a motion to reconsider is treated as a separate and inde-
pendent “final order” for which the alien can seek judicial
review. See Sarmadi v. INS, 121 F.3d 1319, 1321 (9th Cir.
1997). Under the INA, “when a petitioner seeks review of an
order [of removal], any review sought of a motion to reopen
or reconsider the order shall be consolidated with the review
of the order.” 8 U.S.C. § 1252(b)(6).
In Stone v. INS, 514 U.S. 386 (1995), the Supreme Court
explained that the Immigration and Nationality Act (“INA”)
creates parallel tracks for administrative and judicial review.
The INA’s consolidation provision “contemplates two peti-
tions for review”: a motion for reconsideration at the adminis-
PLASENCIA-AYALA v. MUKASEY 1777
trative level, and a separate petition for judicial review. Id. at
394. Congress’ purpose in adopting this structure was to
accelerate the process of judicial review. Id. at 399. Accord-
ingly, “the action [for judicial] review [of] the underlying
order remains active and pending” while the BIA adjudicates
the motion to reconsider. Id. at 393.
The petitioner in Stone had waited to file his petition for
review until after the BIA denied his motion for reconsidera-
tion. He argued that his petition for review was timely
because the filing of the motion for reconsideration tolled the
deadline for filing a petition for review. The Court found that
a “tolling rule’s policy of delayed review would be at odds
with the congressional purpose” of expediting the process of
judicial review. Id. at 400. The Court concluded that “a depor-
tation order is final, and reviewable, when issued” and “[i]ts
finality is not affected by the subsequent filing of a motion to
reconsider.” Id. at 405.
[1] Following Stone, courts have uniformly found that the
denial of a motion to reconsider — much like the filing of a
motion to reconsider — does not affect federal court jurisdic-
tion over the underlying removal order. See, e.g., Khouzam v.
Ashcroft, 361 F.3d 161, 167 (2d Cir. 2004); Desta v. Ashcroft,
329 F.3d 1179, 1183-84 (10th Cir. 2003).
[2] Only one court has considered the effect of the BIA’s
grant of a motion to reconsider on a pending petition for
review. In Jaggernauth v. United States Attorney General,
432 F.3d 1346 (11th Cir. 2005), the BIA granted the petition-
er’s motion for reconsideration and again affirmed the IJ’s
determination that the petitioner was removable for having
committed an aggravated felony. The BIA’s order granting
the motion included some additional analysis on the aggra-
vated felony issue. Id. at 1351. As in this case, the govern-
ment contended that the court did not have jurisdiction
because Jaggernauth had only appealed the BIA’s first deci-
sion and the BIA’s grant of the motion for reconsideration had
1778 PLASENCIA-AYALA v. MUKASEY
rendered that decision “non-final.” Id. Relying on the fact that
the order granting reconsideration had expressly affirmed the
BIA’s original decision, the Eleventh Circuit held that the
original BIA decision remained “final” and that the court
retained jurisdiction over it.
[3] We agree with the Eleventh Circuit’s conclusion.
Where the BIA’s decision granting a motion for reconsidera-
tion expressly affirms the BIA’s prior decision and its analy-
sis does not significantly differ, there is little reason to require
“the petitioner to raise the identical issue again in a petition
to review the BIA’s decision on the motion to reconsider.”
Desta, 329 F.3d at 1184. Stone recognizes that Congress cre-
ated parallel processes of administrative and judicial review
of the BIA’s decisions to expedite the removal process. Once
a petition for review has been filed, federal court jurisdiction
is divested only where the BIA subsequently vacates or mate-
rially changes the decision under review.3
The government argues that the BIA’s grant of a motion to
reconsider is analogous to its grant of a motion to reopen.
This contention is puzzling because the government has
always drawn a sharp distinction between the two forms of
relief, and the BIA has carefully described the differences in
its regulations. 8 CFR § 1003.2.
Several courts of appeals, including ours, have held that a
grant of a motion to reopen vacates the final order of deporta-
tion. See, e.g., Bronisz v. Ashcroft, 378 F.3d 632, 637 (7th Cir.
2004); Lopez-Ruiz v. Ashcroft, 298 F.3d 886, 887 (9th Cir.
2002). But, as the BIA has stated, a motion to reconsider is
3
We also note that the BIA is empowered to vacate its prior decisions,
and has expressly done so on a number of occasions. See, e.g., Matter of
Eslamizar, 23 I. & N. Dec. 684, 689 (BIA 2004); Matter of Ramos, 23 I.
& N. Dec. 336, 347 (BIA 2002). Since the BIA has the power to vacate
its decisions expressly, there is little need to adopt a rule that every grant
of a motion to reconsider constitutes a de facto vacature of its prior deci-
sion.
PLASENCIA-AYALA v. MUKASEY 1779
“fundamentally different” from a motion to reopen. Matter of
Cerna, 20 I. & N. Dec. 399, 402 (BIA 1991). A motion to
reconsider challenges the correctness of the BIA’s decision
based on the existing record. Id. at 402-03. A motion to
reopen, by contrast, “seeks to reopen proceedings so that new
evidence can be presented and so that a new decision can be
entered, normally after a further evidentiary hearing.” Id. at
403. Therefore, the grant of a motion to reopen automatically
vacates the initial deportation order because it is based on a
record that the BIA has deemed incomplete. But the grant of
a motion to reconsider does not necessarily indicate that the
underlying deportation order is similarly defective.
[4] Accordingly, in light of Stone, we hold that the BIA’s
grant of the motion to reconsider did not divest us of jurisdic-
tion over Plasencia-Ayala’s petition for review. In its order
granting Plasencia-Ayala’s motion to reconsider, the BIA
expressly affirmed its prior decision. Further, the BIA twice
emphasized that it was granting the motion for the “limited
purpose” of addressing the IJ’s discretionary denial of cancel-
lation of removal. Although the decision provides a fuller
description of the “categorical” and “modified categorical”
approaches, and cited to its recent decision in Matter of
Tobar-Lobo, its analysis of the moral turpitude issue was sub-
stantially the same as in its previous order. As such, we retain
jurisdiction over Plasencia-Ayala’s petition for review.
IV
The BIA erred in concluding that Plasencia-Ayala’s con-
viction for “failure to register” constitutes a crime involving
moral turpitude.
A
“To determine whether a conviction is for a crime involv-
ing moral turpitude, we apply the categorical and modified
categorical approaches established by the Supreme Court” in
1780 PLASENCIA-AYALA v. MUKASEY
Taylor v. United States, 495 U.S. 575, 599-602 (1990).
Navarro-Lopez, 503 F.3d at 1067. Under the “categorical”
approach, we compare the elements of the statute of convic-
tion to the generic definition of a crime to determine whether
the full range of conduct proscribed by the statute is broader
than — and so does not categorically fall within — the
generic definition. Id. at 1067-68. In doing so, we do not “ex-
amine the underlying facts of the prior offense, but ‘look only
to the fact of conviction and the statutory definition of the
prior offense.’ ” United States v. Corona-Sanchez, 291 F.3d
1201, 1203, 1212-13 (9th Cir. 2002) (en banc) (quoting Tay-
lor, 495 U.S. at 602).
[5] Although there are no statutorily established elements
identifying a crime involving moral turpitude, courts have
characterized moral turpitude as generally involving conduct
that is “inherently base, vile, or depraved, and contrary to the
private and social duties man owes to his fellow men or to
society in general.” Navarro-Lopez, 503 F.3d at 1068. Crimes
are deemed to involve moral turpitude if they fall into one of
two categories: 1) grave acts of baseness and depravity that
offend the most fundamental values of society and 2) offenses
involving fraud. Id. at 1074-75 (Reinhardt, J., concurring).4
To fall in the first category, the crime must involve “some
level of depravity or baseness ‘so far contrary to the moral
law’ that it gives rise to moral outrage.” Id. at 1071 (citing
Jordan v. De George, 341 U.S. 223, 236 n.9 (1951) (Jackson,
J., dissenting)). Such crimes “ ‘must be done willfully’ or
with ‘evil intent.’ ” Quintero-Salazar v. Keisler, 506 F.3d
688, 693 (9th Cir. 2007) (quoting Fernandez-Ruiz v. Gon-
zales, 468 F.3d 1159, 1165-66 (9th Cir. 2006)). The require-
ment of a “willful” or “evil” state of mind has long been rec-
ognized by this Court, Goldeshtein v. INS, 8 F.3d 645, 648
(9th Cir. 1993), Hirsch v. INS, 308 F.2d 562, 567 (9th Cir.
1962), and by other courts of appeals, see Fernandez-Ruiz,
4
Judge Reinhardt’s opinion, although denoted a concurrence, was joined
by a majority of the en banc court.
PLASENCIA-AYALA v. MUKASEY 1781
468 F.3d at 1166 (collecting cases). The Second Circuit has
observed that a “corrupt scienter is the touchstone of moral
turpitude.” Michel v. INS, 206 F.3d 253, 263 (2d Cir. 2000).
The statute at issue here is Nev. Rev. Stat. § 179D.550,
which provides that a sex offender who
(a) Fails to register with a local law enforcement
agency; (b) Fails to notify the local law enforcement
agency of a change of address; (c) Provides false or
misleading information to the Central Repository or
a local law enforcement agency; or (d) Otherwise
violates the provisions of NRS 179D.350 to
179D.550, inclusive, is guilty of a category D felony
and shall be punished as provided in NRS 193.130.
[6] The BIA found that Plasencia-Ayala’s “willful” failure
to register under Nev. Rev. Stat. § 179D.550 constituted a
base and depraved act. The government correctly points out
that this Court has held that “[a] crime involving the willful
commission of a base or depraved act is a crime involving
moral turpitude, whether or not the statute requires proof of
evil intent.” Gonzalez-Alvarado v. INS, 39 F.3d 245, 246 (9th
Cir. 1994). However, a conviction under Nev. Rev. Stat.
§ 179D.550 requires neither willfulness nor a base or
depraved act. Significantly, there is no state of mind require-
ment in § 179D.550. The statute creates strict liability for fail-
ing to register, failing to notify of a change of address,
providing false or misleading information or otherwise violat-
ing the registration requirements. A defendant can be con-
victed under § 179D.550 for simply forgetting to register for
several days past the registration deadline, or even for acci-
dentally sending his registration forms to the wrong address.
Therefore, because § 179D.550 “is a strict liability crime that
does not require any showing of scienter, it lacks the requisite
element of willfulness or evil intent as required by” our prece-
dent. Quintero-Salazar, 506 F.3d at 693; see also Mei v. Ash-
croft, 393 F.3d 737, 740 (7th Cir. 2004) (“crimes deemed not
1782 PLASENCIA-AYALA v. MUKASEY
to involve moral turpitude . . . are either very minor crimes
that are deliberate or graver crimes committed without a bad
intent, most clearly strict-liability crimes”).
[7] Moreover, the conduct proscribed by Nev. Rev. Stat.
§ 179D.550, even if undertaken willfully, does not involve
“some level of depravity or baseness ‘so far contrary to the
moral law’ that it gives rise to moral outrage.” Navarro-
Lopez, 503 F.3d at 1071 (citation omitted). The Nevada
Supreme Court has recognized that Nev. Rev. Stat.
§ 179D.550 is regulatory — not punitive — in nature. Nollette
v. Nevada, 46 P.3d 87, 91 (Nev. 2002) (“registration require-
ments for certain criminal offenders are viewed as a law
enforcement technique and are not designed to serve tradi-
tional aims of punishment, deterrence, and retribution”).
“Where an act is only statutorily prohibited, rather than inher-
ently wrong, the act generally will not involve moral turpi-
tude.” Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1018 (9th
Cir. 2005); Beltran-Tirado v. INS, 213 F.3d 1179, 1184 (9th
Cir. 2000) (holding that conduct that is mala prohibita is gen-
erally not considered to involve moral turpitude); Mei, 393
F.3d at 741 (holding that the distinction between crimes that
involve moral turpitude and those that do not corresponds “to
the distinction between crimes that are malum in se and
crimes that are malum prohibitum”). Indeed, the BIA has rec-
ognized that “crime involving moral turpitude” has been
defined “as an act which is per se morally reprehensible and
intrinsically wrong or malum in se, so it is the nature of the
act itself and not the statutory prohibition of it which renders
a crime one of moral turpitude.” In re Flores, 17 I. & N. Dec.
225, 227 (BIA 1980).
In Matter of Tobar-Lobo, the BIA held that the failure to
register is an act in which “evil intent” is inherent to the
crime, even if it is done inadvertently:
Some obligations, once imparted by proper notifica-
tion, are simply too important not to heed. That is,
PLASENCIA-AYALA v. MUKASEY 1783
even if ‘forgotten,’ an offense based on a failure to
fulfill the offender’s duty to register contravenes
social mores to such an extent that it is appropriately
deemed turpitudinous. In our view, willful failure to
register by a sex offender who has been previously
apprised of his obligation to register implicitly
involves evil intent, even if the obligation may have
been ‘forgotten.’
24 I. & N. Dec at 146-47. In support of its position, the BIA
cited to several cases in which this Court held that commis-
sion of certain base or depraved acts is considered inherently
morally turpitudinous. See Gonzales-Alvarado v. INS, 39 F.3d
245, 247 (9th Cir. 1994) (incest); Grageda v. INS, 12 F.3d
919, 920 (9th Cir. 1993) (spousal abuse); Guerrero de Nodahl
v. INS, 407 F.2d 1405, 1406-07 (9th Cir. 1969) (child abuse);
Bendel v. Nagle, 17 F.2d 719, 720 (9th Cir. 1927) (statutory
rape). However, in each of those cases, the statutes at issue
served to protect “vulnerable classes of citizens who are both
directly and personally the victims of those crimes.”5 Matter
of Tobar-Lobo, 24 I. & N. Dec. at 149 (Filppu, B.M., dissent-
ing). By contrast, to be convicted under Nev. Rev. Stat.
§ 179D.550, “[n]o harm to any person need be shown, nor any
intent to cause harm, nor even a level of deviousness.” Id.
(Filppu, B.M., dissenting). As with most regulatory statutes,
a violation of § 179D.550 causes no direct or particularized
injury. Cf. Galeana-Mendoza, 465 F.3d at 1060-61 (holding
that statute did not qualify as a crime of moral turpitude
because it lacks an injury requirement); Fernandez-Ruiz, 468
F.3d at 1167 (same).
5
Additionally, each of the first three cases required proof of willful con-
duct, which Nev. Rev. Stat. § 179D.550 does not. Although it is not clear
from the opinion, presumably Bendel involved a strict liability statutory
rape statute. However, this Court recently cast doubt on the relevance of
that case to modern moral turpitude analysis. See Quintero-Salazar, 506
F.3d at 694 n.4.
1784 PLASENCIA-AYALA v. MUKASEY
In Matter of Tobar-Lobo, the BIA identified the harm
caused by failure to register as a “breach owed to society”
because it prevents law enforcement authorities and others
from becoming “aware of the potential danger posed by such
an offender.” 24 I. & N. Dec. at 147. “However, commission
of any crime, by definition, runs contrary to some duty owed
to society. If this were the sole benchmark for a crime involv-
ing moral turpitude, every crime would involve moral turpi-
tude.” Navarro-Lopez, 503 F.3d at 1070-71 (emphasis in
original). While a sex offender’s breach of the duty to notify
may deprive law enforcement and others of valuable informa-
tion, it does not demonstrate moral depravity.
[8] The IJ and BIA correctly observed that the recent prolif-
eration of sex offender registration laws reflects our society’s
increasing outrage with sexual offenses. But it is the sexual
offense that is reprehensible, not the failure to register. Regis-
tration statutes can serve important purposes by helping to
prevent future sex crimes, and assisting law enforcement in
apprehending recidivist offenders. But registration is not itself
a socially desirable good. See Fong v. INS, 308 F.2d 191, 195
(9th Cir. 1962) (holding that an alien who was deportable for
failing to register with the Attorney General had committed
“only a minor infraction” and that his record showed “no
moral turpitude whatever”). Therefore, we hold that the mere
failure to register as a sex offender cannot constitute morally
turpitudinous behavior.
B
[9] Where the statute of conviction is categorically broader
than the generic definition of a crime involving moral turpi-
tude, this Court employs the “modified categorical” approach.
Navarro-Lopez, 503 F.3d at 1073. However, the “modified
categorical” approach only applies when the particular ele-
ments in the statute of conviction are broader than the generic
crime. Id. When the statute of conviction is missing an ele-
ment of the generic crime altogether, we cannot hold that “a
PLASENCIA-AYALA v. MUKASEY 1785
jury was actually required to find all the elements” of the
generic crime. Id. The crime of failing to register, like the
accessory crime at issue in Navarro-Lopez, lacks an element
of the generic crime: the requisite baseness or depravity.
Therefore, there is no reason to apply the “modified categori-
cal” approach in this case.
V
[10] Because failure to register under Nev. Rev. Stat.
§ 179D.550 does not qualify as a crime involving moral turpi-
tude within the meaning of 8 U.S.C. § 1182(a)(2)(A)(i)(I), the
BIA and IJ erred in holding that Plasencia-Ayala was remov-
able.
PETITION GRANTED.