DEPORTATION " SEX OFFENDER REGISTRATION VIOLATIONS
Nichols v. United States, ___ U.S. ___, 136 S.Ct. 1113 (Apr. 4, 2016) (sex offender was not required under the federal Sex Offender Registration and Notification Act, 42 U.S.C. 16911(1), 16913(a), (c), to update his registration in Kansas once he left his home and moved to the Philippines, since SORNA did not apply to residents of foreign countries); abrogating United States v. Murphy, 664 F.3d 798 (10th Cir. Dec. 23, 2011). http://www.supremecourt.gov/opinions/15pdf/15-5238_khlo.pdf

Ninth Circuit

DEPORTATION " CONVICTION " FEDERAL " FAILURE TO REGISTER AS A SEX OFFENDER " SORNA APPLIES RETROACTIVELY
United States v. Mattix, 694 F.3d 1082 (9th Cir. Sept. 17, 2012) (the Sex Offender Registration and Notification Act applied retroactively to defendant at the time he failed to register as a sex offender).

DEPORTATION " FEDERAL CONVICTION OF FAILURE TO REGISTER AS A SEX OFFENDER " ELEMENTS " NO REQUIREMENT GOVERNMENT PROVE THAT THE DEFENDANT KNEW OF REGISTRATION REQUIREMENT
United States v. Crowder, 656 F.3d 870 (9th Cir. Aug. 30, 2011) (affirming federal conviction for failing to register as a sex offender pursuant to the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. 2250(a), where the government is not required to prove that a defendant knew that SORNA imposed a registration requirement in order to sustain a conviction under the statute).

Other

SAFE HAVENS - NEW DEPORTATION GROUND - FEDERAL CONVICTION OF FAILURE TO REGISTER AS A SEX OFFENDER
     Effective July 27, 2006, Congress passed a law which adds a new deportation ground to the INA making deportable "[a]ny alien who is convicted under [18 U.S.C. 2250] . . . ." INA 237(a)(2)(A)(v), added by Adam Walsh Child Protection and Safety Act of 2006, HR 4472, PL 109-248, 401 (July 27, 2006). The law also renumbers former INA 237(a)(2)(A)(v) (pardons) as (vi). While a federal conviction of violating 18 U.S.C. 2250 triggers deportation and disqualification from eligibility for cancellation of removal for non-lawful permanent residents, it does not appear to trigger any other major adverse immigration consequences.

     18 U.S.C. 2250 is a federal offense that penalizes failure to register as a sex offender anywhere under the jurisdiction of the United States. It requires persons who meet federal court jurisdictional requirements, and who have been convicted in any jurisdiction of any of a large number of sex offenses (or, it appears, of additional offenses such as false imprisonment) involving minors, to register in the jurisdictions of their conviction, incarceration, residence, or school within three business days after sentence or prior to release from custody, and within three days of changing address. Any noncitizen who violates this new registration requirement may be convicted in federal court of violating 18 U.S.C. 2250, and, once convicted, is deportable and disqualified from cancellation of removal for non-LPRs. The details of who is required to register and for what offenses are provided in Title I of the Adam Walsh Act, Act July 27, 2006, P.L. 109-248. Criminal defenders should advise clients of the requirement, and especially advise noncitizen clients that a conviction will be a ground for deportability.

Elements of Deportation Ground. The elements of this new ground of deportation are as follows:

(1) criminal conviction (2) after admission (3) under 18 U.S.C. 2250 (4) on or after July 27, 2006.

All of the defenses against "conviction" apply to this deportation ground. N. TOOBY & J. ROLLIN, SAFE HAVENS: HOW TO IDENTIFY AND CONSTRUCT NON-DEPORTABLE CONVICTIONS 53-141 (2005) (Chapter 4 on Non-Conviction Dispositions). This deportation ground is triggered only upon a federal criminal conviction of violating 18 U.S.C. 2250, since a state conviction of failure to register as a sex offender is not a "conviction under" 18 U.S.C. 2250. Congress did not use any broader language, as it did for other deportation grounds, such as "described in," "related to," or "involving" or even "defined in." It specifically used the phrase "convicted under." Congress also failed specifically to provide that a state conviction could trigger this ground of deportation. Compare INA 101(a)(43), 8 U.S.C. 1101(a)(43)("The term [aggravated felony] applies to an offense described in this paragraph whether in violation of Federal or State law . . . .]). Thus, the plain language of the statutory ground of deportation includes only federal convictions of violating this specific statute. See Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377 (2004).The deportation ground is triggered only by convictions that occur on or after July 27, 2006, the date of enactment of this new ground of deportation. There is no "effective date" provision for this deportation ground. Therefore, the statute will presumed to operate prospectively only and to apply only to convictions occurring on or after its effective date.

     Crime of Moral Turpitude. A conviction of failure to register as a sex offender, in violation of California Penal Code 290(g)(1), can be committed by merely forgetting to register. People v. Barker, 34 Cal.4th 345, 18 Cal.Rptr.3d 260 (2004). However, the DHS is charging failure to register as a sex offender under Calif. P.C. 290 as a crime of moral turpitude. This seems erroneous. The statute punishes what should be considered a classic example of a regulatory offense, which has no "evil intent" requirement whatsoever.

NEW GROUND OF DEPORTATION - FAILURE TO REGISTER AS A SEX OFFENDER
[Thanks to Stacy Tolchin] President Bush, on 7/27/06, signed into law the Adam Walsh Child Protection and Safety Act of 2006 (H.R. 4472; PL 109-248). Drafted to strengthen penalties against child predators, the Act also bars convicted sex offenders from having family-based petitions approved and makes failure to register as a sex offender a deportable offense. Specifically, section 402 bars all U.S. citizens and permanent residents convicted of a specified offense against a minor (as defined in section 111 of the Act) from ever petitioning for any family member (spouse, children, parents, siblings, fiances) for permanent residency. The only circumstance for waiving this bar is if the Secretary of Homeland Security, in his sole and unreviewable discretion, determines that the U.S. citizen or permanent resident poses no risk to the family member seeking permanent residency.

H.R.4472
Adam Walsh Child Protection and Safety Act of 2006 (Enrolled as Agreed to or Passed by Both House and Senate)

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TITLE IV--IMMIGRATION LAW REFORMS TO PREVENT SEX OFFENDERS FROM ABUSING CHILDREN

SEC. 401. FAILURE TO REGISTER A DEPORTABLE OFFENSE. Section 237(a)(2)(A) of the Immigration and Nationality Act (8 U.S.C. 1227(a)(2)(A)) is amended-- (1) by redesignating clause (v) as clause (vi); and (2) by inserting after clause (iv) the following new clause: `(v) FAILURE TO REGISTER AS A SEX OFFENDER- Any alien who is convicted under section 2250 of title 18, United States Code, is deportable.'.
SEC. 402. BARRING CONVICTED SEX OFFENDERS FROM HAVING FAMILY-BASED PETITIONS APPROVED. (a) Immigrant Family Members- Section 204(a)(1) of the Immigration and Nationality Act (8 U.S.C. 1154(a)(1)), is amended--
(1) in subparagraph (A)(i), by striking `Any' and inserting `Except as provided in clause (viii), any';
(2) in subparagraph (A), by inserting after clause (vii) the following: `(viii)(I) Clause (i) shall not apply to a citizen of the United States who has been convicted of a specified offense against a minor, unless the Secretary of Homeland Security, in the Secretary's sole and unreviewable discretion, determines that the citizen poses no risk to the alien with respect to whom a petition described in clause (i) is filed. `(II) For purposes of subclause (I), the term `specified offense against a minor' is defined as in section 111 of the Adam Walsh Child Protection and Safety Act of 2006.'; and
(3) in subparagraph (B)(i)--
(A) by striking `(B)(i) Any alien' and inserting the following: `(B)(i)(I) Except as provided in subclause (II), any alien'; and
(B) by adding at the end the following:
`(I) Subclause (I) shall not apply in the case of an alien lawfully admitted for permanent residence who has been convicted of a specified offense against a minor (as defined in subparagraph (A)(viii)(II)), unless the Secretary of Homeland Security, in the Secretary's sole and unreviewable discretion, determines that such person poses no risk to the alien with respect to whom a petition described in subclause (I) is filed.'.
(b) Nonimmigrants- Section 101(a)(15)(K) (8 U.S.C. 1101(a)(15)(K)), is amended by inserting `(other than a citizen described in section 204(a)(1)(A)(viii)
(I))' after `citizen of the United States' each place that phrase appears.

Subtitle A--Sex Offender Registration and Notification

SEC. 111. RELEVANT DEFINITIONS, INCLUDING AMIE ZYLA EXPANSION OF SEX OFFENDER DEFINITION AND EXPANDED INCLUSION OF CHILD PREDATORS. In this title the following definitions apply:
(1) SEX OFFENDER- The term `sex offender' means an individual who was convicted of a sex offense.
(2) TIER I SEX OFFENDER- The term `tier I sex offender' means a sex offender other than a tier II or tier III sex offender.
(3) TIER II SEX OFFENDER- The term `tier II sex offender' means a sex offender other than a tier III sex offender whose offense is punishable by imprisonment for more than 1 year and--
(A) is comparable to or more severe than the following offenses, when committed against a minor, or an attempt or conspiracy to commit such an offense against a minor:
(i) sex trafficking (as described in section 1591 of title 18, United States Code);
(ii) coercion and enticement (as described in section 2422(b) of title 18, United States Code);
(iii) transportation with intent to engage in criminal sexual activity (as described in section 2423(a)) of title 18, United States Code;
(iv) abusive sexual contact (as described in section 2244 of title 18, United States Code);
(B) involves--
(i) use of a minor in a sexual performance;
(ii) solicitation of a minor to practice prostitution; or
(iii) production or distribution of child pornography; or
(C) occurs after the offender becomes a tier I sex offender. (4) TIER III SEX OFFENDER- The term `tier III sex offender' means a sex offender whose offense is punishable by imprisonment for more than 1 year and--
(A) is comparable to or more severe than the following offenses, or an attempt or conspiracy to commit such an offense:
(i) aggravated sexual abuse or sexual abuse (as described in sections 2241 and 2242 of title 18, United States Code); or
(ii) abusive sexual contact (as described in section 2244 of title 18, United States Code) against a minor who has not attained the age of 13 years;
(B) involves kidnapping of a minor (unless committed by a parent or guardian); or
(C) occurs after the offender becomes a tier II sex offender.
(5) AMIE ZYLA EXPANSION OF SEX OFFENSE DEFINITION-
(A) GENERALLY- Except as limited by subparagraph (B) or (C), the term `sex offense' means--
(i) a criminal offense that has an element involving a sexual act or sexual contact with another;
(ii) a criminal offense that is a specified offense against a minor;
(iii) a Federal offense (including an offense prosecuted under section 1152 or 1153 of title 18, United States Code) under section 1591, or chapter 109A, 110 (other than section 2257, 2257A, or 2258), or 117, of title 18, United States Code;
(iv) a military offense specified by the Secretary of Defense under section 115(a)(8)(C)(i) of Public Law 105-119 (10 U.S.C. 951 note); or
(v) an attempt or conspiracy to commit an offense described in clauses (i) through (iv).
(B) FOREIGN CONVICTIONS- A foreign conviction is not a sex offense for the purposes of this title if it was not obtained with sufficient safeguards for fundamental fairness and due process for the accused under guidelines or regulations established under section 112.
(C) OFFENSES INVOLVING CONSENSUAL SEXUAL CONDUCT- An offense involving consensual sexual conduct is not a sex offense for the purposes of this title if the victim was an adult, unless the adult was under the custodial authority of the offender at the time of the offense, or if the victim was at least 13 years old and the offender was not more than 4 years older than the victim.
(6) CRIMINAL OFFENSE- The term `criminal offense' means a State, local, tribal, foreign, or military offense (to the extent specified by the Secretary of Defense under section 115(a)(8)(C)(i) of Public Law 105-119 (10 U.S.C. 951 note)) or other criminal offense.
(7) EXPANSION OF DEFINITION OF `SPECIFIED OFFENSE AGAINST A MINOR' TO INCLUDE ALL OFFENSES BY CHILD PREDATORS- The term `specified offense against a minor' means an offense against a minor that involves any of the following:
(A) An offense (unless committed by a parent or guardian) involving kidnapping. (B) An offense (unless committed by a parent or guardian) involving false imprisonment.
(C) Solicitation to engage in sexual conduct.
(D) Use in a sexual performance.
(E) Solicitation to practice prostitution.
(F) Video voyeurism as described in section 1801 of title 18, United States Code.
(G) Possession, production, or distribution of child pornography.
(H) Criminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt such conduct.
(I) Any conduct that by its nature is a sex offense against a minor.
(8) CONVICTED AS INCLUDING CERTAIN JUVENILE ADJUDICATIONS- The term `convicted' or a variant thereof, used with respect to a sex offense, includes adjudicated delinquent as a juvenile for that offense, but only if the offender is 14 years of age or older at the time of the offense and the offense adjudicated was comparable to or more severe than aggravated sexual abuse (as described in section 2241 of title 18, United States Code), or was an attempt or conspiracy to commit such an offense.
(9) SEX OFFENDER REGISTRY- The term `sex offender registry' means a registry of sex offenders, and a notification program, maintained by a jurisdiction.
(10) JURISDICTION- The term `jurisdiction' means any of the following:
(A) A State.
(B) The District of Columbia.
(C) The Commonwealth of Puerto Rico.
(D) Guam.
(E) American Samoa.
(F) The Northern Mariana Islands.
(G) The United States Virgin Islands.
(H) To the extent provided and subject to the requirements of section 127, a federally recognized Indian tribe.
(11) STUDENT- The term `student' means an individual who enrolls in or attends an educational institution, including (whether public or private) a secondary school, trade or professional school, and institution of higher education.
(12) EMPLOYEE- The term `employee' includes an individual who is self-employed or works for any other entity, whether compensated or not.
(13) RESIDES- The term `resides' means, with respect to an individual, the location of the individual's home or other place where the individual habitually lives.
(14) MINOR- The term `minor' means an individual who has not attained the age of 18 years.

SAFE HAVENS - SEX REGISTRATION
USCIS memo on new sex-registration ground of deportation at: http://www.uscis.gov/graphics/lawsregs/handbook/AdamWalshAct072806.pdf

SAFE HAVENS - DEPORTATION GROUNDS
http://criminalandimmigrationlaw.com/~crimwcom/public/articles/new_deport_ground.pdf

GROUNDS OF DEPORTATION - STATE SEX OFFENDER REGISTRATION VIOLATIONS DO NOT TRIGGER DEPORTATION UNDER NEW FEDERAL DEPORTATION GROUND
Congress did not state in the new sex offender registration bar that state failure to register offenses that are analogous (or coextensive) with the federal offense also trigger deportation or other adverse immigration consequences. It specified that only convictions "under 18 USC 2250" would do so. Compare the aggravated felony definition, that expressly states analogous state convictions are included in the aggravated felony definition. The controlled substances deportation ground explicitly includes violations of "any law or regulation of a State . . . ." INA 237(a)(2)(B)(i). The firearms ground expressly includes people "convicted under any law . . . ." INA 237(a)(2)(C). It is impossible to conclude that any state convictions occur "under" 18 USC 2250. Since Congress did not specify state convictions under state laws analogous to 18 USC 2250, they are simply not included. Many judicial decisions hold that if a conviction is not listed as triggering deportation, it does not do so.