On April 10, 2015, Attorney General Eric Holder vacated the November 2008 decision In re: Matter of Cristoval Silva-Trevino.  The decision had been certified by then-Attorney General Michael Mukasey.  Silva-Trevino was controversial from the start because it seemed to give the immigration enforcement apparatus more than its fair share of chances to try to construe a criminal conviction as one that would result in deportability or inadmissibility.

Background – what is a crime involving moral turpitude?

Silva-Trevino is about how to decide whether a criminal conviction is for a “crime involving moral turpitude,” or a CIMT.  A CIMT has been defined as a depraved or immoral act, or a violation of the basic duties owed to fellow man, or in the Silva-Trevino decision itself as a “reprehensible act” with at least a reckless intent.  Using these morals-based definitions, it can be a challenge for Immigration Judges to decide whether conduct forbidden by specific state criminal laws constitute CIMTs.  The 2008 AG decision dictated how immigration judges and the Board of Immigration Appeals should decide cases involving sections 212(a)(2)(A)(i) and 237(a)(2)(A)(i) of the Immigration and Nationality Act.[i]  212(a)(2) defines criminal inadmissibility, while 237(a)(2) defines criminal deportability.  Under 212(a)(2)(A)(i), the exact law at issue in the Silva-Trevino case, a foreign national is inadmissible if she has been convicted or admits to the essential elements of a CIMT.  She cannot be admitted, or come in to the U.S. as a nonimmigrant visa holder or immigrant.

Traditional Approaches to CIMT Analysis

There are two basic approaches to deciding whether a specific conviction is a CIMT.  The categorical approach basically says if a person can possibly be convicted of this particular crime without having been so depraved as to commit a CIMT, then the statute is so broad that no person convicted under this exact statute can be found to have committed a CIMT.

The modified categorical approach[ii] has been applied by courts when interpreting divisible statutes, or those statutes that criminalize several offenses, some of which might be CIMTs and some of which might not.  If the state criminal statute is divisible, under the modified categorical approach, an immigration judge may go beyond the confines of the statute, and look also to the “record of conviction” to see if the person’s conduct should be declared a CIMT.  The record of conviction includes the charging document, plea agreement and disposition, and perhaps the plea transcript.  Looking at the record of conviction is supposed to help Immigration Judges figure out which part of a divisible statute applies to a person’s conviction.  And once the Immigration Judge decides which section applies, the inquiry goes back to a categorical analysis of whether the minimum criminal conduct necessary to sustain a conviction involves moral turpitude.

The Silva-Trevino Test

Silva-Trevino did something very different.  The decision held that a foreign national may be found to have been convicted of a CIMT unless there is a “realistic probability” that the criminal statute under which she was convicted would be applied to conduct not involving moral turpitude.[iii]  Under Silva-Trevino, the immigration judge was able to go beyond the record of conviction and hold a hearing on the facts about the defendant’s conduct, to see if the defendant committed a CIMT.  The judge was permitted under Silva-Trevino to take testimony from the defendant, review police reports, and even consider facts not required to prove an element of the offense.[iv]

AG Holder’s decision

In his April 2015 decision, AG Holder discusses the three steps of a Silva-Trevino inquiry.  Step 1, a categorical inquiry; Step 2, a modified categorical inquiry in which the Immigration Judge could look for facts indicating a CIMT in the record of conviction; and Step 3, “any additional evidence.”  AG Holder notes the Silva-Trevino third step was rejected by the Fifth Circuit Court of Appeals as “contrary to the unambiguous language of the statute.”[v]  AG Holder notes the circuit split that resulted, with some circuits siding with the 5th in its rejection of Silva-Trevino and some circuits granting deference to AG Mukasey’s opinion.  AG Holder also reasons that recent U.S. Supreme Court decisions interpreting the immigration criminal category “aggravated felony” require categorical analysis of the immigration consequences of criminal convictions and reject fact-specific inquiries.

What does Holder ask the Board of Immigration Appeals to do now?

AG Holder directs the Board to come up with a new framework for CIMT analysis that is consistent with U.S. Supreme Court case law on the categorical approach and under what circumstances a modified approach is permitted.  Immigration Judges should now not undertake a Step 3 analysis.

[i] Under INA § 212(a)(2)(A)(i)(I), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of a crime involving moral turpitude (CIMT) (other than a purely political offense) or an attempt or conspiracy to commit such a crime is inadmissible. Under the deportation section, INA § 237(a)(2)(A)(i), any alien who is convicted of a CIMT committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 245(j) after the date of admission and is convicted of a crime for which a sentence of a year or longer may be imposed is deportable. In addition, under subsection (a)(2)(A)(ii), any alien who at any time after admission is convicted of two CIMTs, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefore, and regardless of whether the convictions were in a single trial, is deportable.

[ii] Articulated in Taylor v. United States, 495 U.S. 575 (1990).

[iii] Matter of Silva Trevino.

[iv] The decision itself worded the many chances afforded the government to try to characterize a crime as a CIMT as follows:

In short, to determine whether an alien’s prior conviction triggers application of the Act’s moral turpitude provisions, adjudicators should: (1) look first to the statute of conviction under the categorical inquiry set forth in this opinion and recently applied by the Supreme Court in Duenas-Alvarez; (2) if the categorical inquiry does not resolve the question, look to the alien’s record of conviction, including documents such as the indictment, the judgment of conviction, jury instructions, a signed guilty plea, and the plea transcript; and (3) if the record of conviction does not resolve the inquiry, consider any additional evidence the adjudicator determines is necessary or appropriate to resolve accurately the moral turpitude question.

Matter of Silva Trevino.

[v] Silva-Trevino, 742 F.3d at 200-01.