                                PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 13-2027


KHALID ABDEL WHAB MOHAMED,

                Petitioner,

           v.

ERIC H. HOLDER, JR., Attorney General,

                Respondent.



On Petition for Review of an Order of the Board of Immigration
Appeals.


Argued:   September 19, 2014                Decided:   October 17, 2014


Before TRAXLER, Chief Judge, NIEMEYER, Circuit Judge, and DAVIS,
Senior Circuit Judge.


Petition for review granted; reversed and remanded with
instructions by published opinion.  Judge Niemeyer wrote the
opinion, in which Chief Judge Traxler and Senior Judge Davis
joined.


ARGUED: Steven Harris Goldblatt, GEORGETOWN UNIVERSITY LAW
CENTER, Washington, D.C., for Petitioner.        Bernard Arthur
Joseph, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Respondent. ON BRIEF: Rita K. Lomio, Supervising Attorney,
Lola A. Kingo, Supervising Attorney, Tiffany L. Ho, Student
Counsel, David A. Kronig, Student Counsel, Philip Young, Student
Counsel, Appellate Litigation Program, GEORGETOWN UNIVERSITY LAW
CENTER, Washington, D.C., for Petitioner.     Stuart F. Delery,
Assistant Attorney General, Civil Division, Jamie M. Dowd,
Senior Litigation Counsel, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.




                             2
NIEMEYER, Circuit Judge:

      Khalid Mohamed, a citizen of Sudan, was ordered removed by

the Board of Immigration Appeals (“BIA”) on the ground that he

had been convicted of two crimes “involving moral turpitude” --

a 2010 conviction for sexual battery, in violation of Va. Code

Ann. § 18.2-67.4, and a 2011 conviction for failing to register

as a sex offender, in violation of Va. Code Ann. § 18.2-472.1.

See 8 U.S.C. § 1227(a)(2)(A)(ii) (rendering deportable an alien

who     is    convicted    of   “two     or   more    crimes    involving   moral

turpitude”).        To conclude that the crime of failing to register

as a sex offender was a crime involving moral turpitude, the BIA

relied on its prior decision in Matter of Tobar-Lobo, 24 I. & N.

Dec. 143 (BIA 2007), which so held.

      In      his   petition    for    review,   Mohamed      contends   that   his

failure to register as a sex offender was not a crime involving

moral        turpitude    and   that     Tobar-Lobo     was     an   unreasonable

interpretation of § 1227(a)(2)(A)(ii).                  Because we agree, we

grant Mohamed’s petition for review, reverse the BIA’s ruling,

and remand with instructions to vacate the order of removal.


                                          I

      Mohamed, who was born in Sudan in 1980, entered the United

States as a lawful permanent resident in 2003.                    In 2010, while

living in Virginia, he pleaded guilty to sexual battery, having


                                          3
been    charged     with       “sexually           abusing          .    .       .    a     female      child

17 years    of    age     .    .   .     by       force,      threat,            intimidation,              [or]

ruse,” in violation of Va. Code Ann. § 18.2-67.4.                                            In 2011, he

was    convicted     of    failing           to    register         as       a       sex    offender,         in

violation of Va. Code Ann. § 18.2-472.1.

        Following    Mohamed’s           second         conviction,              the       Department        of

Homeland Security sought his removal, contending that Mohamed’s

two convictions were for crimes involving moral turpitude and

that     Mohamed        was        therefore             deportable               under          8     U.S.C.

§ 1227(a)(2)(A)(ii).                   Before        an       immigration                  judge      (“IJ”),

Mohamed    conceded       that      his       sexual         battery         conviction              involved

moral    turpitude,       but       he    maintained              that       his       conviction            for

failure to register as a sex offender did not involve moral

turpitude and that therefore he was not removable.                                                   He also

applied for cancellation of removal under 8 U.S.C. § 1229b(a),

arguing that his sexual battery conviction was not for a “crime

of violence” and therefore was not an “aggravated felony” that

would     have      barred         him        from       relief          under             § 1229b(a)(3).

Recognizing       that     Mohamed           had     the      burden             of    supporting           his

application for cancellation of removal and finding that the

record     was    “inconclusive               as        to    whether            [Mohamed’s            sexual

battery]     offense          [was]      a        crime      of     violence               and       thus    an

aggravated       felony,”      the       IJ    found         that       Mohamed            had   failed       to

carry his burden and denied his application for cancellation.

                                                    4
      On   appeal       from     the    IJ’s     decision,       the    BIA    dismissed

Mohamed’s appeal and, by order dated July 19, 2013, ordered his

removal.      The       BIA   concluded    that     Mohamed       was   removable      for

having been convicted of two crimes involving moral turpitude,

expressly noting that Mohamed’s failure to register as a sex

offender   was      a    crime   involving       moral      turpitude,    as    held    in

Tobar-Lobo, 24 I. & N. Dec. 143.                   The BIA also concluded that

Mohamed had failed to carry his burden of demonstrating that his

sexual battery conviction was not an “aggravated felony” for

purposes of his cancellation application.

      Mohamed filed this petition for review of the BIA’s order,

challenging both rulings of the BIA.

      By   order        dated    September       29,     2014,     we    directed      the

government     to       release        Mohamed     from      custody      immediately,

indicating that this opinion would provide the basis for our

order.

                                           II

      Mohamed’s         order     of     removal       is     based      on    8 U.S.C.

§ 1227(a)(2)(A)(ii), which provides that any alien “convicted of

two   or     more       crimes     involving       moral         turpitude . . .        is

deportable.”      While Mohamed acknowledges that the sexual battery

offense for which he was convicted was a crime involving moral

turpitude, he argues that his conviction for failing to register

as a sex offender does not similarly qualify.                            According to

                                            5
Mohamed, “[f]ailure to register under Virginia law is a non-

penal, regulatory offense, and a conviction may stand even if

the defendant simply forgot to register on time, and instead

registered     a   day    late.”       Without      two    convictions       for crimes

involving moral turpitude, he asserts that he is not removable.

     The      government      argues    that     the      BIA’s    interpretation     of

§ 1227(a)(2)(A)(ii) -- that the crime of failing to register as

a sex offender is a crime involving moral turpitude -- is based

on a permissible construction of the statute and therefore is

entitled to deference.           It emphasizes the “serious” and “grave”

risk to society posed by sex offenders, arguing on that basis

that the crime of failure to register is “inherently base or

vile” and therefore involves moral turpitude.                        It urges us to

defer    to    what      it   considers        to    be     the    BIA’s     reasonable

interpretation of § 1227(a)(2)(A)(ii) made in Tobar-Lobo, which

held that failing to register as a sex offender is a crime

involving moral turpitude.             In Tobar-Lobo, the BIA observed that

“moral turpitude” refers to “conduct that is inherently base,

vile,    or    depraved,      and   contrary        to    the     accepted    rules   of

morality and the duties owed between persons or to society in

general,” 24 I. & N. Dec. at 144, and that a failure to register

as   a   sex    offender      satisfies    that        definition,      “[g]iven      the

serious risk involved in a violation of the duty owed by this

class of offenders to society,” id. at 146.

                                          6
      The    issue      we    must    address,          therefore,      is   whether    a

violation of Va. Code Ann. § 18.2-472.1 is a crime involving

moral     turpitude,         as     that     term       is   used       in   8    U.S.C.

§ 1227(a)(2)(A)(ii).              In deciding that question, a court must

consider only the statutory elements, not the facts underlying

the   particular       violation      of    the    statute.       See    Prudencio     v.

Holder, 669 F.3d 472, 484 (4th Cir. 2012).                        And resolution of

the issue is a question of law that we review de novo.                                 See

Salem v. Holder, 647 F.3d 111, 115 (4th Cir. 2011).                              A court

will, however, defer to the BIA’s statutory interpretation if

the     statute   is    ambiguous          and    the    BIA’s    interpretation       is

reasonable.       See    Chevron,      U.S.A.,      Inc.     v.   Natural    Res.   Def.

Council, Inc., 467 U.S. 837, 842-43 (1984); Yousefi v. U.S. INS,

260 F.3d 318, 325-26 (4th Cir. 2001); Am. Online, Inc. v. AT & T

Corp., 243 F.3d 812, 817 (4th Cir. 2001).

      We begin by noting that, by using the phrase “involving

moral turpitude” to define a qualifying crime, Congress meant to

refer to more than simply the wrong inherent in violating the

statute.      Otherwise, the requirement that moral turpitude be

involved would be superfluous.                    It follows, therefore, that a

crime involving moral turpitude must involve conduct that not

only violates a statute but also independently violates a moral

norm.     See Tillinghast v. Edmead, 31 F.2d 81, 83 (1st Cir. 1929)

(defining “crime involving moral turpitude” as requiring “an act

                                             7
intrinsically and morally wrong and malum in se”).                            To identify

such   a   crime,       we    consider     whether    conduct       that     violates      the

statutory proscription also violates a moral norm and thus gives

rise to “turpitude” -- meaning the debasement of the norm or the

value.      See Merriam-Webster’s Collegiate Dictionary 1351 (11th

ed. 2007) (defining “turpitude”); id. at 101 (defining “base”).

Accordingly,       we        have    noted    that    “moral        turpitude”       refers

generally to “conduct that shocks the public conscience as being

inherently base, vile, or depraved.”                      Medina v. United States,

259 F.3d 220, 227 (4th Cir. 2001) (quoting Matter of Danesh,

9 I. &     N.    Dec.    669,       670   (BIA    1988));     see     also    Tobar-Lobo,

24 I. &     N.    Dec.       at     144   (defining      moral     turpitude     to       mean

“conduct that is inherently base, vile, or depraved”).

       Thus, by way of example, a sexual battery not only violates

Virginia’s statutory proscription against such conduct but also

independently violates a moral norm that a person not commit

sexual     battery      on    another      person.       It   is    undisputed       by    the

parties that engaging in such conduct would be morally wrong.

We thus can conclude that the statutory crime of sexual battery

involves     moral      turpitude         separate    and     apart    from    the    wrong

inherent in violating the statutory proscription.

       To be sure, the contours of moral norms are not always

clear and may often be the subject of legitimate debate.                                   See

Padilla     v.    Kentucky,         559   U.S.    356,    378      (2010)    (Alito,       J.,

                                              8
concurring in the judgment) (“[D]etermining whether a particular

crime is . . . a ‘crime involving moral turpitude’ is not an

easy task”).           But that is not the case here.

          The statute in question here simply makes it a crime for a

person      convicted      of     a    sex      offense       “knowingly       [to]    fail[]       to

register” as a sex offender.                          Va. Code Ann. § 18.2-472.1(A).

The       registration         procedure         requires           every    sex    offender        to

provide      the      Virginia        State      Police       with     specific       information

about      himself       and     his       offenses;         to     present     himself      to     be

photographed; and to submit a DNA sample.                                   See id. § 9.1-903.

The information thus provided is made accessible to the public

and is intended to reduce the risk of recidivism.

          The government focuses mostly on the stated purpose of the

registration statute, which is to reduce the risk to society of

repeated        sex    offenses.           But    the     statute’s         language       does    not

prohibit the repetition of a sex offense.                                  Rather, the statute

is    a    regulatory       or    administrative               provision       requiring          only

registration -- the presentation of information -- by a specific

class      of    persons.         Thus,         apart        from    the     fact    that    it     is

statutorily           mandated,       we     find       no    moral     norm       requiring       sex

offenders        to     register           or    to     provide        information          to    the

community.             Moreover,       no       party    has        suggested       that    such    a

requirement is imposed by any moral norm.                              While it is true that

the purpose of the statute is aimed at reducing the risk of

                                                    9
future immoral conduct, failure to comply with the operative

elements of the registration statute itself does not violate a

recognized moral norm.

       The government nonetheless urges us to defer to the BIA’s

decision in Tobar-Lobo, which held that a violation of a sex-

offender registration statute similar to the one in Virginia was

a crime involving moral turpitude.                   And it notes that we have

previously      concluded     that        the    term   “crime         involving   moral

turpitude” is ambiguous.               See Yousefi, 260 F.3d at 325-26.              Even

so, it recognizes that we should defer to a BIA decision only if

we also find it reasonable.

       In     Tobar-Lobo,     the        BIA     held   that       a     violation     of

California’s failure-to-register statute -- a provision similar

to    Virginia’s   statute        in    this     case -- was   a       crime   involving

moral turpitude.      It reasoned that the “serious risk involved in

a violation of the duty owed by [sex] offenders to society”

rendered a violation of the sex-offender registration statute

“inherently base or vile” and therefore that such a violation

met    “the    criteria     for    a     crime     involving     moral      turpitude.”

Tobar-Lobo, 24 I. & N. Dec. at 146.                 As the BIA explained:

       Some obligations . . . are simply too important not to
       heed. . . . [E]ven 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.

Id.

                                            10
       While     the    BIA      in      Tobar-Lobo       rightly       recognized           the

importance of sex-offender registration statutes to the public

policy of reducing the rate of recidivism among sex offenders,

it failed to focus on the nature of the registration statute

itself    to     determine       whether     the       proscribed      conduct     involved

moral    turpitude.         In    short,     it    based       its   conclusion        on    the

statute’s purpose and not on the nature of a conviction under

the    statute.         A   conviction        under      the     registration       statute

involves only administrative conduct, not the violation of a

moral    norm.        See   In   re   Alva,       92    P.3d    311,   313    (Cal.     2004)

(describing California’s sex-offender registration statute as a

“regulatory       measure[]”          that    is        “designed       to    assist         law

enforcement and to protect the public”).

       The failure to register as a sex offender is much like the

failure to register for the military draft, neither of which

constitutes a malum in se offense.                      Laws of this nature simply

do not implicate any moral value beyond the duty to obey the

law.      At bottom, violating a registration law -- particularly

Va.    Code    Ann.    § 18.2-472.1 --            is    categorically        not   a    crime

involving moral turpitude, and the BIA’s contrary conclusion,

which was based on the statute’s purpose, is an unreasonable

construction of the statutory language.                        For this reason, we do

not defer to Tobar-Lobo.              Accord Totimeh v. Att’y Gen., 666 F.3d

109,     116   (3d     Cir.      2012)     (“[T]he       BIA’s       determination          that

                                             11
Minnesota’s predatory offender registration statute is a crime

involving moral turpitude . . . is wrong as a matter of law and

is not entitled to Chevron deference”); Efagene v. Holder, 642

F.3d 918, 921 (10th Cir. 2011) (“[T]he BIA’s interpretation of

moral    turpitude      to   .      .    .   encompass     the   Colorado    misdemeanor

offense    of    failure       to       register     is   not    a   ‘reasonable     policy

choice    for    the    agency          to   make’”   (quoting       Chevron,     467    U.S.

at 845)).

     Because Mohamed’s 2011 conviction for failure to register

as a sex offender, in violation of Va. Code Ann. § 18.2-472.1,

was not a crime involving moral turpitude, the BIA erred as a

matter of law in relying on that conviction as a basis to order

Mohamed’s removal under 8 U.S.C. § 1227(a)(2)(A)(ii).                              In view

of this holding, we do not reach Mohamed’s request to review the

ruling    on    his    application           for    cancellation      of   removal      under

8 U.S.C. § 1229b(a).

     Accordingly,         we        grant      Mohamed’s        petition    for    review;

reverse    the    BIA’s      decision;         and    remand     with   instructions       to

vacate Mohamed’s order of removal.

                                                                        IT IS SO ORDERED




                                               12
