Efstathiadis v. Holder
752 F.3d 591
2d Cir.2014Background
- Efstathiadis is a Greek citizen and lawful permanent resident who emigrated to the U.S. in 1967.
- In 2005 he pled guilty to four counts of sexual assault in the fourth degree under Conn. Gen. Stat. § 53a-73a(a)(2).
- § 53a-73a(a)(2) criminalizes sexual contact with another person without that person’s consent, with sexual contact defined in § 53a-65(3).
- Removal proceedings began January 7, 2009 under 8 U.S.C. § 1227(a)(2)(A)(ii) as a CIMT predicate crime.
- An IJ in 2009 held § 53a-73a(a)(2) was not a CIMT because lack of consent might not have a mens rea;
- The BIA reversed in 2010 on CIMT grounds and later decisions treated the 2010 ruling as law of the case; the questions were certified to Connecticut Supreme Court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 53a-73a(a)(2) is a CIMT under a categorical approach. | Efstathiadis argues the minimal conduct may not show evil intent. | Government contends the statute, with intent-to-degrade/sexual gratification, falls within CIMT. | Uncertain; certification appropriate to CT Supreme Court. |
| What level of mens rea attaches to lack of consent in § 53a-73a(a)(2). | Unknown; strict liability for lack of consent could push toward CIMT. | Connecticut may impose some mens rea requirement for lack of consent. | Uncertain; certification appropriate. |
| Whether mistake-of-fact defenses apply to lack of consent under Connecticut law. | Mistake of fact could negate the required mental state if consent is at issue. | Mistake-of-fact as to consent relies on Connecticut’s mental-state requirements. | Unclear; certification appropriate. |
| Whether to certify questions to CT Supreme Court on the CIMT question. | Certification would resolve significant policy and determinative issues. | Certification is appropriate given unsettled state-law questions. | Certification ordered to CT Supreme Court. |
| Whether Smith v. Connecticut Supreme Court applies to fourth-degree sexual assault and consent uncertainties. | Smith’s discussion of consent may support a non-strict liability reading. | Smith involved first-degree sexual assault and is not directly applicable to fourth degree. | Not resolved; discussion informs, but certification covers broader questions. |
Key Cases Cited
- Mendez v. Mukasey, 547 F.3d 345 (2d Cir. 2008) (moral turpitude hinges on evil intent or corrupt mind)
- Gill v. I.N.S., 420 F.3d 82 (2d Cir. 2005) (deference to BIA on immigration terms; de novo review of criminal elements)
- Moncrieffe v. Holder, 133 S. Ct. 1678 (U.S. 2013) (categorical approach; look to minimum conduct of offense)
- In re Silva-Trevino, 24 I. & N. Dec. 687 (2008) (agency decision cited by BIA for broader facts-based review)
- State v. Smith, 210 Conn. 132, 554 A.2d 713 (Conn. 1989) (consent and moral culpability considerations in Connecticut sexual assault context)