PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT
            ________________

            Nos. 10-3939 & 11-1998
              ________________

        GEORGE HERMAN TOTIMEH,

                               Petitioner

                       v.

ATTORNEY GENERAL OF THE UNITED STATES,

                         Respondent
              ________________

     On Petition for Review of a Final Order
      of the Board of Immigration Appeals
 Immigration Judge: Honorable Walter A. Durling
               (No. A024-396-784)
               ________________

           Argued November 16, 2011

    Before: McKEE, Chief Judge, RENDELL
          and AMBRO, Circuit Judges

        (Opinion filed: January 12, 2012)
Wayne P. Sachs, Esquire (Argued)
1518 Walnut Street, Suite 702
Philadelphia, PA 19102-0000

      Counsel for Petitioners

Eric H. Holder, Jr.
 Attorney General
Tony West
Assistant Attorney General, Civil Division
Stephen J. Flynn
 Assistant Director
Thomas W. Hussey, Esquire
Jeffrey R. Meyer, Esquire (Argued)
Benjamin Zeitlin, Esquire
United States Department of Justice
Office of Immigration Litigation, Civil Division
P.O. Box 878
Ben Franklin Station
Washington, DC 20044

      Counsel for Respondent

                     ________________

               OPINION OF THE COURT
                   ________________

AMBRO, Circuit Judge

       George Totimeh, a native of Liberia, seeks relief from
the order of an Immigration Judge (“IJ”) that he be removed
from the United States. In these consolidated petitions for
review, he seeks review of decisions by the Board of




                                2
Immigration Appeals (“BIA”) declining to remand or reopen
his case and dismissing his appeal. 1 We decide whether the
BIA erred in holding that Totimeh’s conviction under
Minnesota’s predatory offender registration statute was a
crime involving moral turpitude for purposes of the
Immigration and Nationality Act (“INA”). We also decide
whether the BIA abused its discretion in not reopening his
case to allow him to supplement the administrative record
with evidence regarding when he first was admitted legally to
the United States. We grant the petitions, reverse the BIA’s
holding regarding Totimeh’s conviction under the predatory
offender registration statute, and remand to the BIA with
instructions to allow Totimeh to supplement the record to
show that he was legally admitted to the United States in July
1980 and to enter an order that he is not removable under
§ 237(a)(2)(A)(i) of the INA. We thus vacate the order of
removal.

I.    Facts and Procedural History

       Totimeh was inspected and admitted to the United
States at New York City as a B-1 visitor in July 1980. Soon
thereafter, he moved to Minnesota to attend a university,
whereupon his status was changed to an F-1 student. On May
8, 1983, he was granted an adjustment of status to that of a
lawful permanent resident.

      In January 1988, Totimeh pled guilty to criminal
sexual conduct in the fourth degree. In 1995, Minnesota
enacted a predatory offender registration statute, Minn Stat.
1
  Pursuant to 8 U.S.C. § 1252(b)(6), our review of Totimeh’s
petition for review of the BIA’s denial of his motion to
reopen his case was consolidated with our review of the
underlying order of removal.




                              3
§ 243.166, which requires persons to register if convicted of
criminal sexual conduct. Totimeh complied with the statute’s
requirements for approximately three years, until he moved to
a friend’s apartment without notifying the authorities of this
change of address. In April 1998, he pled guilty to failing to
comply with the statute’s registration requirement.

       On October 29, 2009, the Department of Homeland
Security (“DHS”) began removal proceedings against
Totimeh by filing a Notice to Appear. The Notice stated that
he was admitted to the United States on May 8, 1983. DHS
alleged that Totimeh was removable pursuant to two
provisions of the INA: (1) based on his 1988 conviction, he
was removable under § 237(a)(2)(A)(i), 8 U.S.C.
§ 1227(a)(2)(A)(i), for having been convicted of a crime
involving moral turpitude committed within five years after
his “date of admission” and for which a sentence of one year
or longer may be imposed; and (2) based on his 1998
conviction, coupled with his 1988 conviction, he was
removable      under     §    237(a)(2)(A)(ii),   8    U.S.C.
§ 1227(a)(2)(A)(ii), for having been convicted of two crimes
involving moral turpitude not arising out of a single scheme
of criminal misconduct.

       When Totimeh first appeared before the IJ, he
conceded the factual allegations in the Notice to Appear,
including that he was admitted to the United States in May
1983. He also conceded that his 1988 conviction was a crime
involving moral turpitude, but denied that his 1998 conviction
under Minnesota’s predatory offender registration statute was
an offense of moral turpitude.
      In February 2010, the IJ issued an interlocutory ruling
in connection with Totimeh’s request for release from DHS




                              4
custody on bond, 2 finding that he was removable under both
provisions of the INA cited by the DHS. Totimeh’s
admissions indicated that he was removable under
§ 237(a)(2)(A)(i) for being convicted of a crime of moral
turpitude within five years of his admission to the United
States. The IJ held as well that Totimeh’s 1998 conviction
was for a crime involving moral turpitude (and thus he also
was removable under § 237(a)(2)(A)(ii)). The latter ruling
relied on the BIA’s decision in In re Tobar-Lobo, 24 I. & N.
Dec. 143 (BIA 2007), whereby it concluded that failure to
register as a sex offender in violation of California’s sex
offender registration act was a crime involving moral
turpitude.

       Several months later, Totimeh asserted for the first
time that he was admitted to the United States in July 1980,
not May 1983. Establishing the July 1980 admission would
have nullified the ground for removing him that
§ 237(a)(2)(A)(i) of the INA provided based on his 1988
conviction. However, he did not support his assertion with
any evidence in the record. Therefore, the IJ ruled that
Totimeh had been admitted as a legal permanent resident in
May 1983, continued to find him removable under
§§ 237(a)(2)(A)(i) and (ii) of the INA, and ordered him
removed to Liberia.

       Totimeh appealed to the BIA. In affirming the IJ, it
similarly relied on Tobar-Lobo to hold that Totimeh was
removable under § 237(a)(2)(A)(ii). It also cited In re Shanu,
23 I. & N. Dec. 754 (BIA 2005), for its holding that the term
“date of admission” includes an adjustment of status and that
an adjustment of status qualifies as a “date of admission”
under § 237(a)(2)(A)(i). Thus, per the BIA’s reasoning, even
2
  Totimeh had been placed in DHS custody for a separate
offense unrelated to the charges underlying his removability.




                              5
had Totimeh offered sufficient proof of his July 1980
admission, he still would have been removable under that
subsection of the INA because his change in status to a
permanent legal resident in May 1983 made that a date of
admission as well.

       After filing his petition for review of the BIA’s
decision, Totimeh filed a motion with the BIA to reopen his
case so that he might supplement the record with
documentary evidence obtained through a request under the
Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. 3 This
evidence established his July 1980 admission, showing that
he was admitted on a B-1 visa on July 20, 1980, and that his
status was changed to an F-1 student in December 1980,
conditioned on his pursuing a full course of study and
completing his studies no later than June 1984. The evidence
further showed that, as of September 1982, Totimeh was not
enrolled in a full course of study.

      Before it ruled on the motion to reopen, the BIA
decided Matter of Alyazji, 25 I. & N. Dec. 397 (BIA 2011), in
which it amended its holding in Shanu, explaining that “date

3
  The documentary evidence that Totimeh obtained through
his FOIA request was controlled by the Government, which
necessarily possessed the information at the time that
Totimeh first asserted to the IJ that he was admitted to the
United States in July 1980. It is strange that the Government
did not provide this information to Totimeh or the IJ at the
time the former asserted his correct admission date, and
instead forced him to seek out the documents through a FOIA
request. This resulted in unnecessary delay, an additional
written decision by the BIA, and an additional appeal to us.
We expect that the Government will respond (and quickly) in
the future with such information in similar circumstances.




                             6
of admission,” as used in § 237(a)(2)(A)(i) of the INA, refers
to the single “date of admission by virtue of which the alien
was present in the United States when he [or she] committed
[the] crime.” 

The BIA nonetheless found that the
evidence regarding Totimeh’s July 1980 admission was
immaterial to his removability under § 237(a)(2)(A)(i)
because his May 1983 adjustment of status was the single
date of admission relevant to his 1988 conviction. Thus,
though acknowledging Alyazji superseded Shanu, the BIA
denied the motion to reopen.

        Totimeh and the Government agree that we must
decide whether violating Minnesota’s predatory offender
registration statute is a crime involving moral turpitude for
purposes of § 237(a)(2)(A)(ii) of the INA. If it is not, we then
must decide whether, pursuant to the BIA’s decision in
Alyazji, the five-year period “after the date of admission” for
purposes of § 237(a)(2)(A)(i) of the INA should be calculated
based on Totimeh’s May 1983 adjustment of status to a
lawful permanent resident or his earlier 1980 admission date. 4

II.    Jurisdiction and Standard of Review

        The IJ has jurisdiction over Totimeh’s removal
proceedings under 8 U.S.C. § 1229a.             The BIA had
jurisdiction to review the IJ’s decision under 8 U.S.C. § 1103.
It had jurisdiction over the motion to reopen under 8 U.S.C.
§ 1229a(c)(7). We have jurisdiction under 8 U.S.C. § 1252 to
review the BIA’s final order of removal and denial of the
motion to reopen.
4
  Totimeh initially argued that the BIA’s holding in Shanu
contravened the plain language of § 237(a)(2)(A)(i) of the
INA. In light of the BIA’s clarification of Shanu in Alyazji,
both Totimeh and the Government agree that Alyazji controls,
and neither party disputes the BIA’s holding in that case.




                               7
        Because the BIA rendered its own opinion regarding
Totimeh’s removability under the INA, we review the
decision of the BIA and not the IJ. Xie v. Ashcroft, 

, 240 (3d Cir. 2004). We review the BIA’s conclusions of
law de novo, “but will afford Chevron deference to the BIA’s
reasonable interpretations of statutes which it is charged with
administering.” Luntungan v. Att’y Gen., 

, 555
(3d Cir. 2006) (quoting Kamara v. Att’y Gen., 

,
211 (3d Cir. 2005)). The BIA’s determination of whether a
specific crime involves moral turpitude qualifies for Chevron
deference. Knapik v. Ashcroft, 

, 87 n.3 (3d Cir.
2004). Under Chevron, U.S.A., Inc. v. NRDC, Inc., 

(1984), “[i]f congressional intent is clear from the
statute’s language, we must give effect to it as written.”

. If a statute “is silent or ambiguous,
we must decide if the agency’s action is based on ‘a
permissible construction of the statute.’”         

467 U.S. at 843). Except for its conclusions of law,
we review the BIA’s denial of the motion to reopen for abuse
of discretion. 

.

III.   Crime Involving Moral Turpitude

       Whether a conviction under a state law is a crime of
moral turpitude calls for “a ‘categorical’ approach, ‘focusing
on the underlying criminal statute rather than the alien’s
specific act.’” Jean-Louis v. Att’y Gen., 

, 465
(3d Cir. 2009) (quoting 

). We consider
“what the convicting court must necessarily have found to
support the conviction and not [] other conduct in which the
defendant may have engaged in connection with the offense.”
Wilson v. Ashcroft, 

, 381-82 (3d Cir. 2003)
(quoting Steele v. Blackman, 

, 135 (3d Cir.
2001)).




                              8
        The BIA has defined “moral turpitude” as “conduct
that is inherently base, vile, or depraved, contrary to the
accepted rules of morality and the duties owed other persons,
either individually or to society in general.” 

. “[I]t is the nature of the act itself and not the statutory
prohibition of it which renders a crime one of moral
turpitude.” Matter of Flores, 17 I. & N. Dec. 225, 227 (BIA
1980). Moral turpitude also may “inhere in serious crimes
committed recklessly, i.e., with a conscious disregard of a
substantial and unjustifiable risk that serious injury or death
would follow.” Partyka v. Att’y Gen., 

, 414 (3d
Cir. 2005). See also 

(deferring to the
BIA’s determination that reckless endangerment is a crime
involving moral turpitude); Matter of Medina, 15 I. & N. Dec.
611, 613 (BIA 1976) (concluding “that moral turpitude can
lie in criminally reckless conduct”). We thus have stated that
“[t]he ‘hallmark’ of moral turpitude [is] ‘a reprehensible act
with an appreciable level of consciousness or deliberation.’”
Mehboob v. Att’y Gen., 

, 276 (3d Cir. 2008)
(quoting 

).

        The Minnesota predatory offender registration statute
that Totimeh violated defined the offense as “knowingly
violat[ing] any of [the statute’s] provisions or intentionally
provid[ing] false information.” Minn. Stat. § 243.166.5
(1998). 5 The statute required persons to register by providing

5
   All references to the statute reflect how it read when
Totimeh was convicted under it in April 1998. It currently
provides that “[a] person required to register under [the
statute] who knowingly violates any of its provisions or
intentionally provides false information . . . is guilty of a
felony and may be sentenced to imprisonment for not more
than five years or to payment of a fine of not more than
$10,000, or both.” Minn. Stat. § 243.166.5(a) (2011). In




                                9
a signed statement “giving information required by the bureau
of criminal apprehension,” a fingerprint card, and a
photograph. 

243.166.4(a). The statute also required
registered offenders to provide a written notice of a change in
residence at least five days before changing residence. 

243.166.3(b). 6

       The BIA concluded that a conviction under
Minnesota’s registration statute was a crime of moral
turpitude by relying on its decision in Tobar-Lobo, 24 I. & N.
Dec. at 143, regarding offenses under California’s similar
registration statute. The majority of a split BIA panel focused
on the California statute’s purpose of sheltering citizens from
dangerous sex offenders: “Given the serious risk involved in
a violation of the duty owed by this class of offenders to
society, we find that the crime [of willfully violating any of
the statute’s requirements] is inherently base or vile and
therefore meets the criteria for a crime involving moral
turpitude.” 

The dissent objected that the statute
swept so broadly as to convict individuals for reasons not
involving “evil intent or a corrupt mind,” creating a
regulatory offense traditionally viewed as lacking the
depravity necessary for moral turpitude. 

But the


1998, the statute provided that an offense under it was a gross
misdemeanor, unless the offender previously had been
convicted under the statute, in which case the additional
offense was a felony. Minn. Stat. § 243.166.5 (1998).
6
  The statute currently sets out a detailed list of information
an offender must provide. Minn. Stat. § 243.166.4a(a)
(2011). It further provides that the person must immediately
inform the proper authorities if any of this information is no
longer valid because of a change in circumstances. 

243.166.4a(b).




                              10
majority reasoned that “[s]ome obligations, once imparted by
proper notification, are simply too important not to heed.
That is, even if ‘forgotten,’ an offense based on a failure to
fulfill the offender’s duty to register contravenes social mores
to such an extent that it is appropriately deemed
turpitudinous.” 

        Federal Courts of Appeals have criticized the BIA’s
conclusion in Tobar-Lobo. See Efagene v. Holder, 

(10th Cir. 2011); Plasencia-Ayala v. Mukasey, 

(9th Cir. 2008), overruled on other grounds by
Marmolejo-Campos v. Holder, 

(9th Cir. 2009).
In the most recent case — Efagene, holding that a conviction
under Colorado’s similar registration statute is not a crime
involving moral turpitude — the Tenth Circuit Court
explained that the BIA’s reasoning so departs from
longstanding precedent of what constitutes moral turpitude as
to render the BIA’s interpretation unreasonable even under
Chevron 

. The Court noted
that the BIA relied on cases holding that offenses of rape,
child abuse, and spousal abuse are crimes of moral turpitude.
They involve intentional conduct, identifiable victims and
actual harm, and are deemed wrong by society independent of
any statutory prohibition. It contrasted those crime types with
regulatory offenses—such as filing, reporting, and licensing
requirements—which historically have been held not to
involve moral turpitude. 

(reviewing BIA and
Courts of Appeals’ decisions that various regulatory offenses
are not crimes involving moral turpitude). Similar to these
regulatory offenses, the Colorado statute prohibited conduct
that society deemed wrong only because it required that
certain actions be taken, not because, “as a categorical matter,
[it] involve[d] an identifiable victim, any actual harm, or any
intent to cause harm.” 

The result was that, under
longstanding BIA precedent, violating the Colorado
regulatory statute did not qualify as a crime of moral




                              11
turpitude, and the BIA’s contrary decision was not entitled to
deference.

       Moreover, Efagene further underscored the
unreasonableness of the BIA’s interpretation of moral
turpitude in Tobar-Lobo by noting that “the rationale for the
decision could apply to any and every criminal 

. “Were moral turpitude to reach any breach
of duty to society, or the failure to meet any obligation ‘too
important not to heed,’ the words ‘moral turpitude’ would be
rendered superfluous and a noncitizen would be removable if
convicted of ‘two or more crimes’ of any kind.” 

this path of analysis. First, based on how
Minnesota’s courts apply it, the statute prescribes an offense
that can be committed without intent, indeed simply by
forgetfulness. State v. Dekraai, 

, at *3
(Minn. Ct. App. Jan. 8, 2008) (“It is a status crime because
you do not have to do anything wrong to be guilty of
it . . . .”); State v. Delapaz, 

, at *6 (Minn.
Ct. App. July 10, 2007) (“The evidence . . . showed that
appellant knew he was required to register within five days of
his move, and his reasons for failing to register did not excuse
him.”). Moreover, Minnesota’s courts have described the
statute as regulatory and designed to assist law enforcement.
See, e.g., State v. Lopez, 

, 704 (Minn. 2010)
(“[T]he primary purpose of [Minn. Stat. § 243.166] is to
create an offender registry to assist law enforcement with
investigations.”) (quoting Boutin v. LaFleur, 

, 717 (Minn. 1999)).

        Second, 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




                              12
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.

        In addition to the Minnesota statute bearing neither of
the traditional hallmarks of a crime involving moral turpitude,
evil intent or a vile act, the BIA’s interpretation of that statute
also contradicts its precedent of what constitutes a crime
involving moral turpitude under the INA. See, e.g., In re
Abreu-Semino, 12 I. & N. Dec. 775, 776 (BIA 1968) (“We
have many times held that the violation of a regulatory, or
licensing, . . . provision of a statute is not a crime involving
moral turpitude.”). “An agency interpretation of a relevant
provision which conflicts with the agency’s earlier
interpretation is ‘entitled to considerably less deference’ than
a consistently held agency view.” INS v. Cardoza-Fonseca,

, 446 n.30 (quoting Watt v. Alaska, 

, 273 (1981)).

       In this context, the BIA’s determination that
Minnesota’s predatory offender registration statute is a crime
involving moral turpitude as a categorical matter for purposes
of the INA is wrong as a matter of law and is not entitled to
Chevron deference. 7 The BIA and IJ thus erred in holding

7
  Totimeh urges that if we determine that the portion of
Minnesota’s predatory offender registration statute that
prescribes the “intentional” provision of “false information”
yields a different result in terms of the moral turpitude
analysis, we should examine his conviction under our
modified categorical approach. We employ this approach
when a statute contains disjunctive elements, some of which
are morally turpitudinous and others of which are not. Jean-

. In these instances, the statute is




                                13
that Totimeh is removable under § 237(a)(2)(A)(ii) of the
INA.

IV.    Date of Admission

       Totimeh      still  may      be     removable      under
§ 237(a)(2)(A)(i) of the INA based on his 1988 conviction,
which clearly was a crime involving moral turpitude, if the
BIA was correct in using his May 1983 adjustment of status
as a “date of admission.” To repeat, it relied on Shanu, 23 I.
& N. Dec. at 754, in which it held that the term “admission”
includes an adjustment of status, and that every date of
admission qualifies as a potentially relevant date for purposes
of § 237(a)(2)(A)(i).

       But Alyazji, 25 I. & N. Dec. at 397, undermines Shanu
by explaining that date of admission “refers to a single date in
relation to the pertinent offense . . . .” 

(emphasis in
original). This “single date” is “the date of the admission by
virtue of which the alien was present in the United States
when he [or she] committed [the] crime.” 

The


“divisible,” and we examine the record of conviction to
determine under which part of the statute the petitioner was
convicted. 

–12.
The conviction record does not specify whether Totimeh was
convicted for “knowingly violat[ing]” the statute or for
“intentionally provid[ing] false information.” Minn. Stat.
§ 243.166.5 (1998). Under these circumstances, we analyze
the offense under “the sub-section requiring the least
culpability,” 

, which, per the
Minnesota statute, is the “knowingly violates” prong. For the
reasons noted above, a conviction under that prong is not a
crime of moral turpitude.




                               14
BIA established the following test to determine removability
in connection with a date of admission:

       [T]o ascertain an alien’s deportability under
       [§ 237(a)(2)(A)(i) of the INA], we look first to
       the date when his crime was committed. If, on
       that date, the alien was in the United States
       pursuant to an admission that occurred within
       the prior 5-year period, then he is deportable.
       Conversely, the alien is not deportable if he
       committed his offense more than 5 years after
       the date of the admission pursuant to which he
       was then in the United States. Moreover, under
       this understanding of the phrase “the date of
       admission,” the 5-year clock is not reset by a
       new admission from within the United States
       (through adjustment of status). Rather, such a
       new admission merely extends an existing
       period of presence that was sufficient in and of
       itself to support the alien’s susceptibility to the
       grounds of deportability.

(emphasis added in part). 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.

       For example, the petitioner in Alyazji was admitted to
the United States as a nonimmigrant in 2001. He remained in
this country thereafter, and in 2006 his status was adjusted to
that of a lawful permanent resident. In 2008, he was
convicted of indecent assault. The BIA held that he was not
convicted of the offense within five years of his “date of
admission” because his 2006 adjustment of status “added
nothing to the deportability inquiry; it may have extended or
reauthorized his then-existing presence, but it did not change




                               15
his status vis-à-vis the grounds of deportability.” 

(emphasis in original). The BIA noted as well that an
overstay or other violation of nonimmigrant status would not
change the outcome if the person entered the United States
legally: “We now make clear that such an overstay or
violation would have no effect on our analysis under
[§ 237(a)(2)(A)(i)].” 

n.8 (emphasis in original). It
contrasted this with the outcome if the petitioner had entered
the United States without inspection (that is, illegally), and
then adjusted his status in 2006: “In that case, the date of
adjustment would have triggered the running of the 5-year
clock because it would have commenced (rather than
extended) the respondent’s then-current period of presence in
the United States following an admission.” 

n.9
(emphasis in original).

       Despite this unequivocal holding that is directly
applicable to Totimeh’s situation, the BIA surprisingly found
him removable under § 237(a)(2)(A)(i) because he was not
“readmitted,” but was present in the United States pursuant to
his May 1983 adjustment in status. Erroneously citing the
BIA’s statement regarding initial entry without inspection, the
Government argues that the BIA’s application of Alyazji is
correct because Totimeh was “out of status” as of September
8, 1982, given that he was not enrolled in a full course of
study at that time, and thus his May 1983 adjustment of status
“commenced” his presence in the United States.

       But based on the BIA’s explicit holding in Alyazji,
regardless whether Totimeh was “out of status,” his 1980
admission was valid, and he remained in the United States
through his adjustment of status in May 1983. His date of
admission did not stop and restart then. The BIA thus
misapplied its unambiguous precedent in Alyazji by holding
that evidence of Totimeh’s 1980 admission is immaterial to
the § 237(a)(2)(A)(i) analysis. Moreover, as the Government




                              16
implicitly acknowledges, the evidence demonstrates that
Totimeh was inspected and admitted legally in July 1980.
Because his 1988 conviction for criminal sexual conduct in
the fourth degree was more than five years after this date of
admission, he is not removable under § 237(a)(2)(A)(i) of
INA.

V.    Conclusion

       For these reasons, we grant Totimeh’s petitions for
review, reverse the BIA’s holding that he is removable under
§ 237(a)(2)(A)(ii) of the INA, vacate the order of removal,
and remand to the BIA with instructions to reopen the case to
allow Totimeh to supplement the record and to enter an order
that Totimeh is not removable under § 237(a)(2)(A)(i) of the
INA.




                             17