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Efstathiadis v. Holder

United States Court of Appeals, Second Circuit

May 20, 2014

CHARALAMBOS EFSTATHIADIS AKA Harry Efstathiadis, Petitioner-Appellant,
v.
ERIC H. HOLDER, JR., United States Attorney General, Respondent-Appellee

Argued January 16, 2014

Page 592

The Board of Immigration Appeals held that Appellant was removable due to prior convictions for crimes involving moral 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. Petition for review of a final decision of the Board of Immigration Appeals.

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.

Before: STRAUB, HALL and LIVINGSTON, Circuit Judges.

OPINION

Page 593

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 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 8 U.S.C. § 1227(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

Page 594

Vol. 1, at 173 (Dkt. No. 34). The Board of Immigration 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, 24 I. & N. Dec. 687 (Nov. 7, 2008), available at 2008 WL 4946455, 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."

DISCUSSION

I. Jurisdiction & Standard of Review

We have jurisdiction over appeals from " a final order of removal." 8 U.S.C. § 1252(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. 8 U.S.C. § 1252(a)(2)(C). Our jurisdiction is reinstated where we are called upon to " review . . . constitutional claims or questions of law." 8 U.S.C. § 1252(a)(2)(D). Put another way, " [w]e retain jurisdiction . . . to determine whether this jurisdictional bar applies." James v. Mukasey, 522 F.3d 250, 253 (2d Cir. 2008); see Alsol v. Mukasey, 548 F.3d 207, 210 (2d Cir. 2008) (" Thus, we retain jurisdiction to decide the ...


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