Massachusetts “Open and Gross Lewdness” (§ 16) Is Not a CIMT Absent a Lewd (Sexual) Intent Element

Introduction

In Cabral Fortes Tomar v. Bondi (1st Cir. Jan. 23, 2026), the First Circuit reviewed a removal order entered against Lucio Ivaldo Cabral Fortes Tomar, a lawful permanent resident and citizen of Cape Verde. The government charged Tomar as removable under 8 U.S.C. § 1227(a)(2)(A)(ii) after he sustained two Massachusetts felony convictions for “open and gross lewdness and lascivious behavior,” Mass. Gen. L., ch. 272, § 16 (“§ 16”).

The central legal issue was categorical: whether § 16 is, by its elements, a “crime involving moral turpitude” (CIMT) such that two convictions trigger removability. Tomar argued that § 16 can be violated without “lewd intent” (i.e., a sexual purpose), making it overbroad under the categorical approach. The Board of Immigration Appeals (BIA) disagreed and affirmed removal. The First Circuit granted the petition, held § 16 is not categorically a CIMT, reversed the BIA, and remanded for further proceedings.

Summary of the Opinion

The court held that Massachusetts § 16 is not categorically a CIMT because it does not require proof of “lewd intent,” understood as a sexual purpose. Applying the categorical approach, the court concluded there is a realistic probability Massachusetts will apply § 16 to intentional public exposure that is objectively shocking and actually shocks a witness, even if the exposure is not sexually motivated. Because lewd intent is required for exposure/indecency crimes to qualify as CIMTs under BIA precedent, § 16 cannot serve as the predicate for removability under 8 U.S.C. § 1227(a)(2)(A)(ii).

As to remedy, the court deemed this a rare case where reversal (not a vacate-and-remand for further agency consideration) was appropriate because the dispute was purely legal, required no fact-finding, and further agency proceedings on the dispositive issue would be futile.

Analysis

Precedents Cited

1) The categorical approach framework

Mellouli v. Lynch, 575 U.S. 798 (2015): The court invoked Mellouli for the foundational proposition that a state conviction triggers removal only when, by definition, it fits a federally defined removable category. This anchors the analysis in elements—not facts.
Da Graca v. Garland, 23 F.4th 106 (1st Cir. 2022): The decision leaned heavily on Da Graca to articulate the categorical approach, including the “realistic probability” requirement and the prohibition on using a state statute as a categorical match where the statute reaches non-qualifying conduct.
Coelho v. Sessions, 864 F.3d 56 (1st Cir. 2017) (quoting Moncrieffe v. Holder, 569 U.S. 184 (2013)): The opinion used the “least of the acts” principle—courts ask what the minimum conduct criminalized is, not what typically happens.
Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007): The court used Duenas-Alvarez for the “realistic probability, not a theoretical possibility” standard, then applied it to Massachusetts enforcement and case law under § 16.
Mejia v. Holder, 756 F.3d 64 (1st Cir. 2014): Cited on jurisdiction and standard of review, reinforcing that courts may review the legal question whether a crime is a CIMT and review Massachusetts law de novo; also that review focuses on the BIA where it provides its own analysis.

2) What makes an offense a CIMT (and why exposure offenses are special)

Da Silva Neto v. Holder, 680 F.3d 25 (1st Cir. 2012): Supplied the First Circuit’s CIMT definition: conduct that is “inherently base, vile, or depraved” and requires a culpable mental state beyond mere reprehensibility.
Matter of Cortes Medina, 26 I. & N. Dec. 79 (BIA 2013): The fulcrum precedent. The BIA’s rule: “indecent exposure is not inherently turpitudinous in the absence of lewd or lascivious intent,” and for exposure/indecency crimes to be CIMTs, the statute must require willful exposure and lewd intent.
Barrera-Lima v. Sessions, 901 F.3d 1108 (9th Cir. 2018): Used to clarify the meaning of “lewd intent” adopted from Matter of Cortes Medina: “lewd intent” is limited to sexually motivated exposure (including sexual affront), not merely conduct intended to annoy or offend.

3) Massachusetts § 16 elements and application

Commonwealth v. Maguire, 65 N.E.3d 1160 (Mass. 2017): Provided the five-element formulation of § 16 and emphasized that “alarm or shock” has both subjective and objective components—critical to showing § 16 focuses on impact and community norms rather than sexual motivation.
Commonwealth v. Quinn, 789 N.E.2d 138 (Mass. 2003): Supported the element sequencing (intent modifies exposure) and the “openly” element’s independent mens rea (intended public exposure or reckless disregard), undercutting the government’s attempt to read a single “intent” across all later elements.
Commonwealth v. Ora, 883 N.E.2d 1217 (Mass. 2008): Clarified that “openly” is about imposing nudity on an unwilling audience and identified the statute’s “central purpose” as preventing fright and intimidation (especially regarding children), reinforcing that § 16 is not inherently about sexual lewdness.
City of Revere v. Aucella, 338 N.E.2d 816 (Mass. 1975): Cited via Ora to illustrate the unwilling-audience concept (consenting-adult contexts treated differently), again focusing on public imposition rather than sexual purpose.
Commonwealth v. Waterman, 158 N.E.3d 867 (Mass. App. 2020): Cited for the objective offensiveness/shock standard in the “alarm or shock” analysis.
Commonwealth v. Taranovsky, 105 N.E.3d 266 (Mass. App. 2018): Important application case: reversing a § 16 conviction tied to “sunbathing”/thong exposure due to weakness in the objective “shock” proof, illustrating the perspective-based (observer “vantage point”) inquiry and underscoring the absence of any required sexual intent finding.
Commonwealth v. Kessler, 817 N.E.2d 711 (Mass. App. 2004): Used to distinguish § 16 from the lesser misdemeanor of indecent exposure, showing § 16 is aggravated by “alarm or shock” (impact severity), not by sexual lewdness as an element.
Commonwealth v. Queally, 770 N.E.2d 1002, 2002 WL 1461443 (Mass. App. 2002) (unpublished): Treated as evidence of “realistic probability.” Queally rejected the argument that § 16 requires “intent to engage in lustful or sexually gratifying conduct,” directly supporting the First Circuit’s conclusion that Massachusetts courts may apply § 16 without a sexual-purpose element. The panel explicitly addressed its non-citable status under state rules but used it as probative of how the statute is applied, consistent with Da Graca v. Garland.

4) Older BIA treatment and why it did not control

Matter of J-, 2 I. & N. Dec. 533 (BIA 1946): The government relied on this early BIA decision treating § 16 as involving moral turpitude because it criminalizes intentional public nudity. The First Circuit rejected its relevance because it predates the categorical approach and conflicts with the later BIA framework in Matter of Cortes Medina, which requires lewd intent for exposure-type CIMTs.

5) Remedy: reversal rather than ordinary remand

Duarte de Martinez v. Bondi, 132 F.4th 74 (1st Cir. 2025) (quoting Gonzales v. Tomas, 547 U.S. 183 (2006)): Cited for the “ordinary remand rule” and the narrow circumstances where it does not apply.
Vurimindi v. U.S. Att'y Gen., 46 F.4th 134 (3d Cir. 2002) (quoting NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969)): Provided a multi-factor test supporting a court resolving an issue without remand where the question is purely legal, de novo, does not implicate agency expertise, and needs no fact-finding; remand would be an “idle and useless formality.”

6) Divisibility and the (non-)use of the modified categorical approach

Descamps v. United States, 570 U.S. 254 (2013); Cisneros-Guerrerro v. Holder, 774 F.3d 1056 (5th Cir. 2014): Noted to confirm that neither party argued § 16 is divisible; thus the modified categorical approach was not in play.

Legal Reasoning

The court’s reasoning proceeds in three core steps:

Identify the controlling CIMT rule for exposure-type offenses. Under Matter of Cortes Medina, exposure/indecency crimes are CIMTs only when they require lewd intent. The court adopted the “sexual purpose” understanding of lewd intent (including “sexual affront”) consistent with Barrera-Lima v. Sessions.
Determine whether § 16 necessarily requires lewd (sexual-purpose) intent. Using the Massachusetts Supreme Judicial Court’s element list from Commonwealth v. Maguire, the panel rejected the government’s effort to “read in” an intent-to-shock mens rea. The placement of “intentionally” as element (2) (“intentionally”) between (1) “exposed” and the later elements, plus the (3) “openly” element’s allowance of recklessness (from Commonwealth v. Ora/Commonwealth v. Quinn), made it “unnatural” to treat intent as “trickling down” to later “alarm or shock” elements.
Apply “realistic probability” and the “least acts” analysis. The minimum conduct covered by § 16 is intentional exposure done openly (including reckless disregard as to being seen), in a manner objectively likely to produce alarm or shock, that actually alarms or shocks someone. Nothing in those elements requires sexual motivation. Commonwealth v. Queally bolstered the conclusion that Massachusetts courts may apply § 16 without a sexual-intent element, satisfying the “realistic probability” standard under Gonzales v. Duenas-Alvarez and Da Graca v. Garland.

The court further rejected the government’s conflation of “objectively shocking” with “lewd.” The objective/subjective “alarm or shock” analysis from Commonwealth v. Maguire asks about the witness reaction and community norms—not the defendant’s sexual purpose. The opinion underscores that a defendant could intentionally expose themselves for nonsexual reasons (e.g., “mooning” traffic or nude sunbathing) yet still cause alarm or shock meeting § 16.

Impact

1) Immediate immigration consequences in the First Circuit. This decision removes Massachusetts § 16 from the list of categorical CIMT predicates (at least on the current, non-divisible understanding). Lawful permanent residents and other noncitizens with § 16 convictions may have stronger grounds to contest removability under 8 U.S.C. § 1227(a)(2)(A)(ii), and the government may need to identify alternative removal grounds or predicate offenses.

2) Doctrinal clarity on “lewd intent” and exposure statutes. The opinion operationalizes Matter of Cortes Medina in a state-statute context where “shock/alarm” might superficially resemble lewdness. The holding signals that courts will not infer sexual intent from public-offense elements focused on victim/community impact unless the statute actually requires a sexual-purpose mens rea.

3) “Realistic probability” evidence may include nonprecedential decisions. By relying on Commonwealth v. Queally (while acknowledging its non-citable status as precedent under Massachusetts practice), the court reinforces that the “realistic probability” inquiry is empirical—about how a statute is applied—not strictly limited to formally precedential state decisions.

4) Remedy practice in immigration petitions for review. The court’s willingness to reverse (rather than simply vacate and remand) when the issue is purely legal may encourage litigants to press for final merits relief in similar categorical-approach disputes—though the panel stressed this is “rare.”

Complex Concepts Simplified

Crime Involving Moral Turpitude (CIMT): A federal immigration category for especially blameworthy crimes. It generally requires both (a) reprehensible conduct and (b) a culpable mental state. Not all offensive or unlawful behavior qualifies.
Categorical approach: A method that compares the elements of the state offense to the federal definition (here, CIMT) without looking at what actually happened in the person’s case. If the statute covers any non-CIMT conduct, it is not a categorical match.
“Least of the acts” criminalized: Courts test the minimum conduct that can lead to conviction under the statute, not the typical or egregious cases.
Realistic probability test: It is not enough to imagine a far-fetched non-CIMT application; there must be a realistic likelihood the state would apply the statute that way—often shown via state cases, charging patterns, or authoritative interpretations.
Lewd intent: As used in this opinion (drawing from Matter of Cortes Medina and Barrera-Lima v. Sessions), it means the exposure was done with a sexual purpose (including sexual affront), not merely to offend, annoy, or create general shock.
Divisible statute / modified categorical approach: If a statute lists alternative elements creating distinct crimes (some CIMTs, some not), a court may consult a limited set of conviction documents to identify which alternative formed the basis of conviction. The panel noted nobody argued § 16 is divisible, so this pathway was unavailable.

Conclusion

Cabral Fortes Tomar v. Bondi establishes that Massachusetts “open and gross lewdness” (§ 16) is not categorically a CIMT because its elements do not require lewd (sexually motivated) intent. The decision applies and reinforces the BIA’s exposure-offense CIMT rule from Matter of Cortes Medina, rejects attempts to infer sexual intent from “shock/alarm” elements, and confirms that realistic-probability evidence may include nonprecedential state decisions used as proof of application rather than as binding law. Practically, the ruling narrows CIMT-based removability for Massachusetts § 16 convictions within the First Circuit and offers a clear template for analyzing public-decency statutes under the categorical approach.