- Introduction: Deportability for Failure to Register of a Sex Offender
- Deportability Provision
- The Federal Criminal Statute: 18 U.S.C. 2250
Under section 237(a)(2)(A)(v) of the Immigration and Nationality Act (INA), an alien who is convicted of failure to register as a sex offender, under the federal criminal statute 18 U.S.C. 2250, is deportable. In this article, we will examine the INA's deportability provision and the federal criminal statute found in 18 U.S.C. 2250.
Section 237(a)(2)(A)(v) was added to the INA as part of the Adam Walsh Child Protection and Safety Act of 2006 (PL 109-248, 120 STAT, Jul. 27, 2006) [PDF version]. Please see our full article on the immigration implications of the Adam Walsh Act to learn more [see article].
Please see our full article on section 237(a)(2) of the INA to learn about related criminal deportability grounds [see article].
Section 237(a)(2)(A)(v) of the INA renders deportable an alien who is convicted under 18 U.S.C. 2250 of the U.S. Code. The specificity of section 237(a)(2)(A)(v) is important in that it applies exclusively to convictions for the failure to register as a sex offender in violation of 18 U.S.C. 2250. This means that a conviction under a similar law regarding failure to register as a sex offender will not render an alien deportable under section 237(a)(2)(A)(v).
18 U.S.C. 2250 covers generally two types of failure to register violations. First, the statute covers violations stemming from failing to register or failing to update registration as a sex offender. Secondly, the statute covers intentional violations of travel reporting requirements that apply to registered sex offenders. We will focus primarily on these two sets of provisions because they are most pertinent to immigration law. The statute also covers affirmative defenses and sentencing provisions. Although we will touch on these two sections, our primary focus will be on the conditions under which a person may be convicted in violation of the statute, since the immigration law's concern as embodied in section 237(a)(2)(A)(v) of the INA is only whether an alien was convicted under 18 U.S.C. 2250. It is important to remember that 18 U.S.C. 2250 is not an immigration statute, and it applies broadly to individuals who are convicted of certain sex offenses and then released into the community.
Our discussion of the statute will reference the Sex Offender Registration and Notification Act (SORNA). SORNA establishes the rules for when an individual is required to register as a sex offender or to update his or her sex offender registration. The Department of Justice (DOJ) explains that SORNA was created to allow for the monitoring and tracking of convicted sex offenders upon their release into the community. All 50 states, the District of Colombia, the principal U.S. territories, and the federally recognized Indian tribes are required to comply with the federal standards outlined in SORNA [link].
The DOJ advises that an individual who fails to properly register may face fines and up to 10 years in prison. The statute provides for enhanced sentencing of up to 30 years in prison for certain individuals who both fail to register or update registration and who are convicted of certain violent federal crimes [link].
To start, let us assess 18 U.S.C. 2250(a) in its entirely:
- (a) In General.-Whoever-
- (1) is required to register under the Sex Offender Registration and Notification Act;
- (A) is a sex offender as defined for the purposes of the Sex Offender Registration and Notification Act by reason of a conviction under Federal law (including the Uniform Code of Military Justice), the law of the District of Columbia, Indian tribal law, or the law of any territory or possession of the United States; or
- (B) travels in interstate or foreign commerce, or enters or leaves, or resides in, Indian country; and
- (3) knowingly fails to register or update a registration as required by the Sex Offender Registration and Notification Act;
shall be fined under this title, imprisoned not more than 10 years, or both.
The first two key points of the statute are 18 U.S.C. 2250(a)(1) and (3). Clause (1) applies the statute to individuals who are required to register as sex offenders under SORNA, whereas clause (3) applies it to those who knowingly fail to register or update their registrations under SORNA. Thus, two elements required for conviction under this section are the requirement to register and the knowing failure to do so. As we will examine, there are certain affirmative defenses in the criminal context in which an individual may make to establish that the failure to register was not knowing.
Clauses (2)(A) and (B) list the proscribed circumstances in which the knowing failure may occur in order for a conviction to occur under the statute. First, the individual may be a sex offender as defined under SORNA by reason of a conviction under federal law (including under the Uniform Code of Military Justice), the laws of the Washington D.C., Indian tribal law, or the law of any territory or possession of the United States. By virtue of being a sex offender as defined by SORNA and knowingly failing to comply with SORNA's registration statutes, an individual may be covered by 18 U.S.C. 2250. Furthermore, an individual who travels in interstate or foreign commerce, enters and resides in, Indian country, and who knowingly fails to register as a sex offender as required under SORNA, may be covered by 18 U.S.C. 2250.
In Nichols v. United States, 136 S.Ct. 1113 (2016) [PDF version], a unanimous Supreme Court overturned a conviction under 18 U.S.C. 2250(a) against an individual who had failed to update his sex offender registration in Kansas after leaving his home in Kansas to move to the Philippines. However, the parties in the case agreed that the individual's conduct was encompassed by 18 U.S.C. 2250(b), which we cover in the next section.
18 U.S.C. 2250(b) addresses certain international travel reporting violations. The provision applies to whoever (quoting from the statute):
- is required to register under the Sex Offender Registration and Notification Act (42 U.S.C. 16901 et seq.);
- knowingly fails to provide information required by the Sex Offender Registration and Notification Act relating to intended travel or foreign commerce; and
- engages or attempts to engage in the intended travel or foreign commerce.
shall be fined under this title, imprisoned not more than 10 years, or both.
SORNA has certain reporting requirements for individuals covered who are seeking to travel or to engage in foreign commerce. If an individual engages in or even attempts to engage in the intended travel or foreign commerce without first meeting the registration requirements, he or she will be covered by 18 U.S.C. 2250(b).
18 U.S.C. 2250(c) provides for an “affirmative defense” relating to criminal charges and/or proceedings under 18 U.S.C. 2250(a) or (b). The affirmative defense relates to establishing that the failure to register, if required, was due to uncontrollable circumstances. The defense provided can be distinct from arguing that the failure to register was not knowing, which is provided for in both 18 U.S.C. 2250(a) and (b).
Before proceeding, it is important to note that this issue is distinct from an adjudication of an alien's deportability under section 237(a)(2)(A)(v) of the INA. The INA relies upon the mere fact of a conviction under 18 U.S.C. 2250, and therefore these affirmative defenses would not be relevant in the immigration context. The time to advance an affirmative defense for an alien must be during the ongoing criminal case, and not during immigration proceedings following a conviction under 18 U.S.C. 2250. For such a defense, the alien would need to retain a criminal defense attorney. However, as we will discuss in the conclusion, an alien facing criminal charges is well advised also to consult with an experienced immigration attorney regarding how different outcomes to the criminal proceedings may affect his or her immigration situation.
An individual may successfully defend against a charge of violating 18 U.S.C. 2250 by establishing the affirmative defense as provided in 18 U.S.C. 2250(a) or (B) (paraphrasing from the statute):
- The failure to comply with the sex offender reporting requirements under SORNA was caused by uncontrollable circumstances;
- The individual did not contribute to the creation of the circumstances in “reckless disregard of the requirement to comply”; and
- The individual complied with the sex offender reporting requirements as soon as the circumstances ceased to exist.
If an alien who is charged with the failure to register as a sex offender is able to establish the facts required for an affirmative defense as described by 18 U.S.C. 2250(c), he or she may avoid a conviction that would result in deportability under section 237(a)(2)(A)(v) of the INA.
It is important to note that the sentence for a conviction under 18 U.S.C. 2250 is not relevant in the immigration context. This is because section 237(a)(2)(A)(v) covers any alien who is convicted under 18 U.S.C. 2250 without regard to the sentence imposed. This is significant because the range of sentences that may be imposed for a conviction under 18 U.S.C. 2250 is actually quite broad. In general, the sentence for a conviction stemming from a violation of 18 U.S.C. 2250(a) or (b) is a fine, a term of imprisonment not exceeding 10 years, or both. However, for the purpose of deportability, an individual who is convicted and only sentenced to a fine would still be chargeable as removable from the United States.
If an alien is facing criminal charges, he or she should consult with a criminal defense attorney. However, it is also important to understand the potential immigration ramifications of different outcomes of the criminal proceedings. For this reason, aliens facing criminal charges are also well advised to undergo a consultation with an experienced immigration attorney.
If an alien is subject to SORNA's registration requirements, it is essential that he or she comply with them. If an alien is convicted for failure to comply with the registration requirements, he or she will be rendered deportable. Deportability will attach regardless of the sentence imposed. It should be noted that in many cases, the underlying sex offense that would necessitate SORNA registration requirements would trigger adverse immigration consequences for the alien. For this reason, it is important for an alien to consult with an experienced immigration attorney if he or she is facing criminal charges in the first place.