In 1988, less than five years after his final adjustment in status, Totimeh pled guilty to criminal sexual conduct in the fourth degree (the specifics of the crime are not included in the opinion, and the filings were not available on Westlaw.) As a result of his conviction, Totimeh was required to register as a sex-offender when Minnesota passed its Megan's Law statute 1995.
In 1998, Totimeh moved to a friend's house without registering his change of address. This violated his reporting requirements and, later that year, he pleaded guilty to violations of the Minnesota Megan's Law statute.
The Department of Homeland Security sought to have Totimeh deported on two alternative grounds. First, ICE argued that under 8 U.S.C. § 1227(a)(2)(A)(i), the 1983 adjustment date qualified as his "date of admission" and, therefore, his 1988 conviction for criminal sexual conduct - clearly a crime of moral turpitude ("CMT") - was a CMT within five years of the date of his admission. Second, DHS argued that Totimeh's conviction for failing to register his new address was also a CMT, and therefore, under 8 U.S.C. § 1227(a)(2)(A)(ii) he was removable because he committed two crimes of moral turpitude not arising out of a single incident.
The Immigration Judge agreed, and ordered Totimeh's removal. He appealed, and the Board of Immigration Appeals affirmed. He appealed to the Third Circuit Court of appeals, where the lower court decisions were reversed.
First, the Third Circuit considered whether violation of Minnesota's Megan's Law statute is, in fact, a crime of moral turpitude. Instead, the Court held that. . .
. . . the statute does not regulate a crime that of itself is inherently vile or intentionally malicious. Sexual assault, child abuse, and spousal abuse are no doubt inherently vile and elicit strong outrage. But this outrage is directed at the underlying crimes that resulted in the passage of offender registration statutes such as that in Minnesota; the independent act of failing to register or update a registration as a predatory offender is not, as a category of crime, an inherently despicable act.Next the Court considered whether Totimeh's 1983 date of adjustment could properly be considered his "date of admission" where he had previously been admitted to the country as a B-1 visitor. Based on prior opinions from the BIA, the Third Circuit concluded that:
Stated simply, once an alien is in the United States legally, the five-year clock starts. Later adjustment of the reason that the alien may stay does not restart a clock that never stopped.On these two bases, the Third Circuit vacated the order of removal and remanded the matter to the BIA to enter an appropriate order.
