13‐236‐ag Efstathiadis v. Holder

13‐236‐ag Efstathiadis v. Holder

In the United States Court of Appeals For the Second Circuit

August Term, 2013 No. 13‐236‐ag

CHARALAMBOS EFSTATHIADIS AKA Harry Efstathiadis, Petitioner‐Appellant,

v.

ERIC H. HOLDER, JR., United States Attorney General, Respondent‐Appellee.

Petition for review of a final decision of the Board of Immigration Appeals.

ARGUED: JANUARY 16, 2014 DECIDED: MAY 20, 2014

Before: STRAUB, HALL and LIVINGSTON, Circuit Judges.

The Board of Immigration Appeals held that Appellant was removable due to prior convictions for crimes involving moral EFSTATHIADIS V. HOLDER

turpitude. We determine that whether or not Appellant’s prior crimes involved moral turpitude implicates an unsettled issue of Connecticut law and that we are unable to predict how the Connecticut courts would resolve the issue. Specifically, we are unable to determine what level of mens rea applies to the lack of consent element of a conviction for sexual assault in the fourth degree pursuant to Connecticut General Statute § 53a‐73a(a)(2). Accordingly, we certify questions resolving this issue to the Connecticut Supreme Court.

ROBERT C. ROSS, Esq., West Haven, CT, for Appellant.

JESSICA R. C. MALLOY, Trial Attorney (Stuart F. Delery, Assistant Attorney General, on the brief, Douglas E. Ginsburg, Assistant Director, on the brief), United States Department of Justice, for Appellee.

PER CURIAM:

Charalambos Efstathiadis is a citizen of Greece who emigrated

to the United States on or about December 22, 1967, and is a legal

permanent resident. On October 19, 2005, Efstathiadis pled guilty to

four counts of sexual assault in the fourth degree under Connecticut

General Statute § 53a‐73a(a)(2). C.G.S. § 53a‐73a(a)(2) criminalizes

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subjecting “another person to sexual contact without such other

person’s consent.” “Sexual contact” is further defined as contact

“with the intimate parts of a person not married to the actor for the

purpose of sexual gratification of the actor or for the purpose of

degrading or humiliating such person.” C.G.S. § 53a‐65(3).

On January 7, 2009, the United States commenced removal

proceedings against Efstathiadis pursuant to

(a)(2)(A)(ii), which provides that an alien who “is convicted of

two or more crimes involving moral turpitude, not arising out of a

single scheme of criminal misconduct, . . . is deportable.” On April

8, 2009, Michael W. Straus, Immigration Judge, determined that

C.G.S. § 53a‐73a(a)(2) was not a crime involving moral turpitude

(“CIMT”) because “the Connecticut statute does not appear to

require that the actor know that his actions were not consented to by

the victim.” Oral Decision of the Immigration Judge at 5, Joint

App’x Vol. 1, at 173 (Dkt. No. 34). The Board of Immigration

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Appeals (“BIA”) reversed on October 22, 2010, on two alternate

grounds. First, the BIA found that C.G.S. § 53a‐73a(a)(2) was a CIMT

because “the requirement of acting for the purpose of sexual

gratification of the actor or an intention to degrade or humiliate the

victim presents a realistic probability that the perpetrator had an evil

intent.” Decision of the BIA, at 2, Joint App’x Vol. 1, at 128. Second,

the BIA applied the Attorney General’s decision in In re Silva‐

Trevino,

(Nov. 7, 2008), available at

, to go beyond the modified categorical approach and

consider the underlying facts of Efstathiadis’ conviction.1 Decision

of the BIA, at 2, Joint App’x Vol. 1, at 128. Because the BIA’s

decision was non‐final, there was a second round of decisions in

which, on December 26, 2012, the BIA ultimately applied its 2010

decision as the “law of the case.”

1 We do not reach the validity of In re Silva‐Trevino because we certify questions to the Connecticut Supreme Court that may, depending on the answers, resolve this case.

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DISCUSSION

I. Jurisdiction & Standard of Review

We have jurisdiction over appeals from “a final order of

removal.”

(a)(1), (a)(2)(D). Under the somewhat

tortuous jurisdictional provisions of Title 8, however, we lack

jurisdiction “to review any final order of removal against an alien

who is removable by reason of having committed” certain criminal

offenses, including criminal offenses that constitute CIMTs.

(a)(2)(C). Our jurisdiction is reinstated where we are called

upon to “review . . . constitutional claims or questions of law.”

(a)(2)(D). Put another way, “[w]e retain jurisdiction . . .

to determine whether this jurisdictional bar applies.” James v.

Mukasey,

(2d Cir. 2008); see Alsol v. Mukasey,

(2d Cir. 2008) (“Thus, we retain jurisdiction to decide

the question of law regarding whether this jurisdictional bar applies

. . . .”). In sum, we have jurisdiction to determine whether C.G.S.

§ 53a‐73a(a)(2) is a CIMT.

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“While this Court gives substantial deference to the BIA’s

interpretation of the [Immigration and Nationality Act], a statute it

is charged with administering, we review de novo its interpretation

of state and federal criminal laws.” Santana v. Holder,

(2d Cir. 2013); see Weng v. Holder,

(2d Cir. 2009)

(announcing the same standard of review). Specifically, “[b]ecause

the BIA has expertise applying and construing immigration law, we

afford Chevron deference to its construction of undefined statutory

terms such as ‘moral turpitude.’ However, . . . the BIA has no

expertise in construing federal and state criminal statutes, and so we

review de novo the BIA’s finding that a petitioner’s crime of

conviction contains those elements which have been properly found

to constitute a CIMT.” Gill v. I.N.S.,

(2d Cir. 2005)

(internal citations omitted).

Because the BIA’s 2012 decision adopted the reasoning of the

BIA’s non‐final 2010 decision, we effectively review the BIA’s 2010

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decision. See Chupina v. Holder,

(2d Cir. 2009) (per

curiam) (dismissing appeal from non‐final order of removal, but

noting that exhausted claims would be preserved in a proper appeal

when a final order is issued); Weng,

(“Because the

BIA adopted and affirmed the IJ’s decision, we review the two

decisions in tandem.”); Chen v. Gonzales,

(2d Cir.

2005) (stating the same principle).

II. Merits

Whether a prior conviction constitutes a CIMT turns on

whether the crime is “inherently base, vile, or depraved.” Mendez v.

Mukasey,

(2d Cir. 2008). Because “[i]t is in the

intent that moral turpitude inheres,” the focus of the analysis is

generally “on the mental state reflected” in the statute. Gill,

; see Mendez,

(“Whether a crime is one involving

moral turpitude depends on the offender’s evil intent or corruption

of the mind.” (internal quotation marks omitted)).

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In making this determination, we apply a categorical

approach that “look[s] not to the facts of” the particular case, “but

instead to whether [the offense] categorically fits within” the

definition of a CIMT. See Moncrieffe v. Holder,

(2013). Where the state statute “contain[s] several different crimes,

each described separately, . . . a court may determine which

particular offense the noncitizen was convicted of by examining the

charging document[,] . . . plea agreement[, and] plea colloquy,”

among other documents in the judicial record. Id.; see Wala v.

Mukasey,

, 107‐08 (2d Cir. 2007) (applying the same

standard in a CIMT case). We refer to this as the “modified

categorical approach.” See United States v. Beardsley,

(2d Cir. 2012); Akinsade v. Holder,

(2d Cir. 2012).

Here, there is no dispute that although the statute under

which Efstathiadis was convicted—C.G.S. § 53a‐73a—contains

several subparts, the record clearly establishes his conviction for

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sub‐part (a)(2). C.G.S. § 53a‐73a(a)(2), in turn, is informed by the

statutory definition of “sexual contact,” which contains two alternate

intent elements: acting “for the purpose of sexual gratification of the

actor or for the purpose of degrading or humiliating such person.”

See C.G.S. § 53a‐65(3).

The parties do not address which of these two possible

intentions underlie Efstathiadis’ conviction. We do not decide the

issue because the differences between the categorical and modified

categorical approaches have no impact on our determination to

certify. Pursuant to either approach, our focus is on the question of

whether or not “the minimum conduct criminalized by the statute”

would support classification of a crime as a CIMT. Moncrieffe,

; see Gill,

(“[T]o constitute a CIMT, a

criminal category must by definition, and in all instances, contain

each of those elements that constitute a CIMT.”). For the reasons we

discuss below, we are left uncertain whether the “minimum

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conduct” necessary to sustain a conviction involving either possible

intention supports the classification of C.G.S. § 53a‐73a(a)(2) as a

CIMT.

C.G.S. § 53a‐73a(a)(2) outlines three elements—sexual contact,

for a prohibited purpose, and without consent. Connecticut courts

have not added a complicating judicial gloss but have applied the

statute as written. See, e.g., State v. McGee,

(Conn.

App. Ct. 2010) (reciting the statutory definitions given above); State

v. Montoya,

(Conn. App. Ct. 2008) (same). The

Connecticut Criminal Jury Instructions2 also identify three

elements—sexual contact, “specific intent” either to obtain sexual

gratification or to degrade or humiliate the complainant, and “the

2 These model instructions are published on the Connecticut Judiciary’s official website and appear to be produced by a committee of judges “as a guide for judges and attorneys in constructing charges and requests to charge and as a general reference to criminal offenses and their elements. The use of these instructions is entirely discretionary and their publication by the Judicial Branch is not a guarantee of their legal sufficiency.” Criminal Jury Instructions Home, http://www.jud.ct.gov/JI/criminal/default.htm (last visited May 19, 2014).

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complainant did not consent to the sexual contact.” Crim. Jury

Instructions § 7.1‐12. Neither the statute, nor the cases applying the

statute, nor the model jury instructions requires any jury finding of

mens rea with regard to the lack of consent element.

Generally speaking, mens rea refers to the degree of mental

culpability with which a defendant committed the acts underlying a

conviction and comes in four basic types (intent, knowledge,

recklessness, negligence), with a crime in which mens rea is not

required being referred to as a “strict liability” offense. See United

States v. Figueroa,

, 114 n.3 (2d Cir. 1998) (“The types of

mental states required for criminal convictions range from

purposefulness (or intention) to knowledge, recklessness or

negligence. In some limited circumstances, when the penalties

attached to a violation are low and the reputational effects of a

conviction are minimal, Congress may also create true ‘strict

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liability’ crimes, which have no mens rea requirement at all.”

(internal citation omitted)).

The level of mens rea attributable to a given act is of vital

importance to the culpability we assign to that act. For example,

under Connecticut law, to be convicted of either murder or

manslaughter a defendant must actually “cause the death” of the

victim, but for a murder conviction this act must be undertaken with

“the intent to cause the death,” whereas for manslaughter, the

“intent to cause serious physical injury” will suffice. Compare C.G.S.

§ 53a‐54a(a) (murder) with C.G.S. § 53a‐55(a)(1) (manslaughter).

Thus, the mens rea attributable to an act answers the fundamental

question of whether the act was intentional, a reasonable mistake, or

a mistake that should have been avoided.

Each element of a crime may require a different level of mens

rea or none at all. Here, C.G.S. § 53a‐73a(a)(2) unambiguously

provides for a mens rea component with respect to the sexual contact

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element by requiring that the contact be with one of two prohibited

purposes (intentions). What is unclear, by contrast, is what level of

mens rea, if any, applies to the lack of consent element. For example,

if the requisite mens rea were knowledge, then the prosecution

would be required to prove that a defendant knew that the victim

did not consent. If the requisite mens rea were negligence, then the

prosecution would need to prove that a reasonable person in the

defendant’s position would have known that the victim did not

consent, even if the defendant did not actually know. Alternatively,

C.G.S. § 53a‐73a(a)(2) may not have a mens rea component with

regards to lack of consent, i.e., strict liability may attach to that

element. In this circumstance, the “minimum conduct” required to

sustain a conviction would be sexual contact with the intent to

receive sexual gratification, or to humiliate, under circumstances

where the victim did not consent, even if the perpetrator reasonably

believed that consent were present.

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The BIA applied the familiar test that, to qualify as a CIMT,

the elements of the crime must demonstrate “an evil intent, or

depraved or vicious motive.” Decision of the BIA, at 2, Joint App’x

Vol. 1, at 128. Our precedents have also emphasized the importance

of an evil intent, variously describing the requirement as “a vicious

motive or corrupt mind,” or “[a]n evil or malicious intent,” and

noting that “corrupt scienter is the touchstone of moral turpitude”

and that “it is in the intent that moral turpitude inheres.” Michel v.

I.N.S.,

(2d Cir. 2000) (internal quotation marks

omitted) (collecting cases); see Mendez,

(“Whether a

crime is one involving moral turpitude depends on the offender’s

evil intent or corruption of the mind.” (internal quotation marks

omitted)).

But the intent to receive sexual gratification, standing alone, is

not evil. The requisite mens rea, if any, applicable to the lack of

consent element is thus relevant to our determination whether

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C.G.S. § 53a‐73a(a)(2) is a CIMT. So, too, might be a circumstance

such as the age of the alleged victim.

Nothing in this opinion should be taken to imply that we are

holding that negligence as to lack of consent combined with the

intent to receive sexual gratification renders C.G.S. § 53a‐73a(a)(2) a

CIMT. Similarly, nothing should be understood to imply that

knowledge of lack of consent is the minimum mens rea required for a

CIMT. We expressly decline to reach these questions. We conclude

only that in the context of a conviction arising under C.G.S. § 53a‐

73a(a)(2), where the only factors affecting the moral character of the

crime are the intention to receive sexual gratification (or to

humiliate) and the mens rea associated with lack of consent, strict

liability as to lack of consent would not lend support to

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categorization as a CIMT, even if we might, on further analysis and

other bases, conclude that such categorization were appropriate.3

The Government argues that Connecticut provides for a

mistake‐of‐fact defense that would protect a defendant who

reasonably believed he or she had consent. Indeed, sexual assault

statutes sometimes do not specify a mens rea as to consent when, in

operation, a recognized mistake of fact defense acts as a proxy for

mens rea in this context. See Robin Charlow, Bad Acts in Search of a

Mens Rea: Anatomy of a Rape,

, 276 (2002);

see also Peter Westen, The Logic of Consent 147 (2004) (“A lack of

3 By way of example as to factors that, if relevant, would affect our analysis, we note that Efstathiadis was not charged with fourth degree sexual assault involving a minor. See C.G.S. § 53a(a)(1)(A)‐(B). We therefore express no opinion as to whether a conviction under that subpart, or a different sexual assault statute involving a minor victim, would constitute a CIMT even in the absence of a mental component as to lack of consent. Cf. Mehboob v. AG of the United States,

(3d Cir. 2008) (observing “the consensus that moral turpitude inheres in strict liability sex offenses” involving minors or children (citing cases)); Marinelli v. Ryan,

, 475‐76 (2d Cir. 1961) (“We have no doubt that” C.G.S. § 53‐216, the indecent touching of a minor under the age of sixteen, “involves moral turpitude.”).

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‘wrongful intent’ regarding a victim’s non‐consent is a defense of

mens rea, and it obtains when a victim’s conduct is such as to cause a

defendant reasonably ‘to assume’ that she is voluntarily acquiescing

to sexual intercourse in her mind even if she is not.”). We are

uncertain, however, as to whether this is the rule in Connecticut. As

relevant here, a mistake‐of‐fact defense applies where a “factual

mistake negated the mental state required for the commission of an

offense.” C.G.S. § 53a‐6(a)(1). So mistake of fact as to consent is a

defense if and only if Connecticut requires the prosecution to prove

a mental state related to lack of consent—the very question we are

unable to answer.

The Government also relies on the Connecticut Supreme

Court’s decision in State v. Smith,

(Conn. 1989). In that

case, the Connecticut Supreme Court appeared to speak generally

about the nature of consent:

While the word “consent” is commonly regarded as referring to the state of mind of the complainant in a

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sexual assault case, it cannot be viewed as a wholly subjective concept. Although the actual state of mind of the actor in a criminal case may in many instances be the issue upon which culpability depends, a defendant is not chargeable with knowledge of the internal workings of the minds of others except to the extent that he should reasonably have gained such knowledge from his observations of their conduct. . . . [W]hether a complainant has consented to intercourse depends upon her manifestations of such consent as reasonably construed. If the conduct of the complainant under all the circumstances should reasonably be viewed as indicating consent to the act of intercourse, a defendant should not be found guilty because of some undisclosed mental reservation on the part of the complainant.

.

Smith, however, considered a prosecution for sexual assault in

the first degree,

, not the fourth, and we are aware of no

instances in which Smith has been applied to sexual assault in the

fourth degree.4 Moreover, the court’s holding in Smith relied upon

4 We note that the Government does argue that none of the reported cases involving application of C.G.S. § 53a‐73a(a)(2) appears to have imposed liability on a defendant who reasonably believed he had consent. But even assuming, arguendo, that the Government is correct, these cases do not discuss whether Smith is applicable in this context.

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features of sexual assault in the first degree that are not applicable to

sexual assault in the fourth degree. At the time Smith was decided,

sexual assault in the first degree applied “to a person who compels

another person to engage in sexual intercourse by the use of force or

by the threat of use of force which reasonably causes such person to

fear physical injury.” Id. at 716 (internal quotation marks and

ellipses omitted). The Connecticut Supreme Court reasoned that

“[a] finding that a complainant had consented would implicitly

negate a claim that the actor had compelled the complainant by

force or threat to engage in sexual intercourse.” Id. at 717; see Crim.

Jury Instructions § 7.1 (characterizing Smith by stating that

“[c]onsent, often raised as a defense, is more exactly a denial of the

element of compulsion”). Sexual assault in the fourth degree

requires no analogous force or threat through which a reasonable

belief of consent defense could be imputed.

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In sum, we are left uncertain about the likelihood that the

Connecticut courts would permit a defendant to be convicted under

C.G.S. § 53a‐73a(a)(2) where the defendant reasonably believed that

consent was present. On the one hand, the statute, elements as

recited in the cases, and jury instructions suggest strict liability. On

the other hand, we are unable to find a case where we are confident

strict liability was imposed and the Connecticut Supreme Court has

spoken generally to the issue of consent in a manner that suggests

strict liability is inappropriate. Even if Connecticut would not apply

strict liability to the lack of consent element, we are unable to

discern what level of mens rea would be applied.

We have the authority to certify an open question of law to the

Connecticut Supreme Court. C.G.S. § 51‐199b(d) (“The Supreme

Court may answer a question of law certified to it by a court of the

United States . . . .”); Second Cir. Local R. 27.2(a) (“If state law

permits, the court may certify a question of state law to that state’s

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highest court.”). “Where a question of statutory interpretation

implicates the weighing of policy concerns, principles of comity and

federalism strongly support certification.” Parrot v. The Guardian Life

Ins. Co. of Am.,

(2d Cir. 2003) (internal quotation

marks omitted). Whether or not Connecticut imposes strict liability

for intentional sexual touching without consent implicates important

policy concerns, as is clear from the Connecticut Supreme Court’s

decision in Smith. Certification, therefore, is appropriate in this

case.5

5 While a petition is pending in this Court, the Government’s forbearance policy assures that the filing of a motion to stay removal, as has been done here, will suffice to prevent removal. Of course, our decision to certify questions of law to the Connecticut Supreme Court does not alter in any way the fact that Efstathiadis’ petition is pending before this Court. Should the Government disagree, we expect it to inform us promptly so that we might decide the pending motion to stay removal. Cf. In re Immigration Petitions for Review Pending in the U.S. Court of Appeals for the Second Circuit,

(2d Cir. 2012).

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CONCLUSION

Under federal immigration law, Efstathiadis’ removal turns

on whether the crime he was convicted of—C.G.S. § 53a‐73a(a)(2)—

is a CIMT. The answer to that question, in turn, implicates the level

of mens rea applicable to C.G.S. § 53a‐73a(a)(2)’s lack of consent

element. Because we are unable to predict what level of mens rea the

Connecticut courts would require, and because the issue involves

the weighing of important policy considerations, we respectfully

certify the following questions to the Connecticut Supreme Court:

(1) Is C.G.S. § 53a‐73a(a)(2) a strict liability offense with respect to the lack of consent element?

(2) If C.G.S. § 53a‐73a(a)(2) is not a strict liability offense with respect to the lack of consent element, what level of mens rea vis‐à‐vis that element is required to support a conviction?

Accordingly, it is hereby ORDERED that the Clerk of this

Court transmit to the Connecticut Supreme Court a Certificate, as set

forth below, together with a complete set of the briefs, appendices,

and record filed by the parties in this Court. The parties are further

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ORDERED to bear equally such costs and fees, if any, as may be

required by the Connecticut Supreme Court.

CERTIFICATE

The foregoing is hereby certified to the Connecticut Supreme

Court pursuant to Second Circuit Local Rule 27.2(a) and Connecticut

General Statute § 51‐199b(d), as ordered by the United States Court

of Appeals for the Second Circuit.

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