Important 9th Circuit Immigration Decision on Failure to Register as Sex Offender

The 9th Circuit today issued an important decision on the immigration consequences for failure to register as a sex offender under former California PC 290(g)(1). Previously the Board of Immigration Appeals (BIA) had held that a California failure to register conviction was categorically a crime involving moral turpitude (CMT) triggering possible removal under 8 USC 1227(a)(2)(A)(i). In re Tobar-Lobo, 24 I. & N. Dec. 143 (BIA 2007). Today's 9th Circuit decision reiterated that an offense must exhibit some form of evil intent to qualify as a CMT. As California courts have previously held that a conviction under former PC 290(g)(1) would lie even for mere forgetfulness, the 9th ruled that the offense could not be deemed a categorical CMT. Pannu v. Holder, No. 07-71988 (9th Cir. May 11, 2011).

Pannu is good news for the defense, but hazards remain. Although sex offender failure-to-register offenses no longer appear to be categorical CMTs in the 9th Circuit, it appears that ICE could still establish deportability by resort to evidence demonstrating intentionality under either the Shepard modified categorical approach or the Silva-Trevino 3rd Step. So, keep those complaints, orders, abstracts, and transcripts ambiguous on the element of intent.