Totimeh v. Attorney General of United States
2012 U.S. App. LEXIS 610
| 3rd Cir. | 2012Background
- Totimeh admitted to the United States in July 1980 as a B-1 visitor; status later changed to F-1 and then adjusted to lawful permanent resident in May 1983.
- In January 1988, Totimeh pled guilty to criminal sexual conduct in the fourth degree.
- In 1995 Minnesota enacted a predatory offender registration statute; Totimeh registered for ~3 years then moved without notifying authorities.
- In April 1998, Totimeh pled guilty to failing to comply with the registration requirement.
- In October 2009, DHS filed removal proceedings alleging removability under §237(a)(2)(A)(i) based on a 1988 crime involving moral turpitude within five years of admission, and under §237(a)(2)(A)(ii) based on two MT crimes (1988 and 1998).
- The IJ and BIA held Totimeh removable under §237(a)(2)(A)(ii) and denied reopening; Totimeh later obtained FOIA evidence of a July 1980 admission and sought reopening.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Minnesota’s predatory offender registration is a crime involving moral turpitude. | Totimeh argues the statute is regulatory, not inherently vile or evil. | BIA relied on Tobar-Lobo to categorize the statute as morally turpitudinous. | Not a crime involving moral turpitude. |
| How to compute the five-year clock under §237(a)(2)(A)(i) given Totimeh's admissions and Alyazji. | Alyazji controls; the July 1980 admission starts the clock and may render 1988 conviction outside five years. | May 1983 adjustment was the relevant admission date per Shanu, not the earlier July 1980 admission. | The five-year period should be calculated from the July 1980 admission; Totimeh not removable under §237(a)(2)(A)(i). |
| Whether the BIA abused its discretion in denying reopening to admit FOIA evidence. | FOIA evidence showed July 1980 admission; reopening needed to supplement record. | Alyazji guidance made the July 1980 evidence immaterial to §237(a)(2)(A)(i) analysis; denied reopening. | Case remanded; BIA must reopen to allow supplementation and issue not removable under §237(a)(2)(A)(i). |
| Whether Totimeh is removable under §237(a)(2)(A)(ii) after rejecting the CIMT finding. | Minnesota statute is not a CIMT; 1988 CIMT conviction alone could be insufficient. | BIA held Totimeh removable under §237(a)(2)(A)(ii) based on Tobar-Lobo reasoning. | Reversed; not removable under §237(a)(2)(A)(ii). |
Key Cases Cited
- Tobar-Lobo, 24 I. & N. Dec. 143 (BIA 2007) (regulatory-like registration offenses can be moral turpitude depending on context)
- Shanu, 23 I. & N. Dec. 754 (BIA 2005) (date of admission includes adjustment of status; affects §237(a)(2)(A)(i) analysis)
- Alyazji, 25 I. & N. Dec. 397 (BIA 2011) (clarifies that ‘date of admission’ refers to a single date relevant to the offense; governs divisible analyses)
- Mehboob v. Att’y Gen., 549 F.3d 272 (3d Cir. 2008) (hallmark of moral turpitude involves conscious depravity or deliberation; applies to analysis)
- Partyka v. Att’y Gen., 417 F.3d 408 (3d Cir. 2005) (reckless conduct can be moral turpitude; supports broader interpretation)
- In re Abreu-Semino, 12 I. & N. Dec. 775 (BIA 1968) (regulatory/licensing offenses are not crimes involving moral turpitude)
- Knapik v. Ashcroft, 384 F.3d 84 (3d Cir. 2004) (deference to BIA on moral turpitude determinations; categorization context)
- Cardoza-Fonseca, 480 U.S. 421 (1987) (agency interpretations of statute; Chevron deference framework)