By Attorney Farhad Sethna © 2015
On April 10, 2015, in Matter of Silva-Trevino, 26 I&N Dec. 550 (A.G. 2015), Attorney General Eric Holder vacated the previous Attorney General’s opinion.
As background, on November 7, 2008, Attorney General Mukasey issued an opinion in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), which set forth a three-stage test to determine if a conviction for an offense was also a conviction for a “crime involving moral turpitude” (CIMT).
As background, this three-stage test seemed designed to push the Immigration Court toward determining that an offense was indeed a CIMT in one way or another- that is, it virtually guaranteed that a respondent would be found to have committed a CIMT for almost any offense. The immigration consequences were staggering: in many cases, individuals could be denied immigration benefits, and in some of those cases, individuals could be placed in removal proceedings for even minor crimes, or be excluded from the United States. Therefore, classification of a crime as a “CIMT” for immigration purposes became a hotly litigated issue.
The three-stage test was as follows: In the first step, the Immigration Judge would have to engage in a categorical inquiry in order to determine “whether moral turpitude necessary inheres in all cases that have a real probability of being persecuted” under a particular criminal provision. I.E., if the crime is in the same category (corresponded to) a statutory provision that included elements of Moral Turpitude – which are a knowing and willful intention to commit an offense that is contrary to societal norms – then that crime is also a CIMT. As you will see below, this first stage of the analysis still remains under Attorney General Holder’s revised analysis.
If this categorical analysis did not resolve whether the crime involved moral turpitude, then the adjudicator should proceed to the second step, which was a “modified categorical” inquiry. Under this “modified categorical” analysis, the adjudicator should also consider-in addition to the statute- whether the record of conviction showed that a crime involved an element of moral turpitude.
If neither the first step or the second step could determine whether the crime involved moral turpitude, then Attorney General Mukasey instructed that a third step should be followed, which was that “immigration judges should be permitted to consider evidence beyond that record if (that is, the record of conviction), if doing so is necessary and appropriate to ensure proper application of the Act’s moral turpitude provisions.” This included items like police reports, or the defendant’s statement, witness statements, etc, which may not have been used in the prosecution.
The unstated effect of this three-stage analysis, was that the Immigration Judge could try to find and pigeonhole an alien’s crime into a “CIMT” slot. As explained above, this made the alien deportable, and ineligible, in many instances, for relief from removal.
ATTORNEY GENERAL HOLDER’S DECISION
Attorney General (A.G.) Holder determined that five federal appellate circuits in the United States had rejected A.G. Mukasey’s instructions thus far. These would be the 5th, 9th, 4th, 11th, and 3rd Circuits.
On the other hand, two circuits had upheld A.G. Mukasey’s instructions. These were the 7th and the 8th Circuits.
Additionally, A.G. Holder also noted that several Supreme Court cases had rejected the “circumstance-specific” analysis and held that the Immigration Act phrase “convicted of” permitted only a categorical approach.
Because of the lack of uniformity between the circuits, which gave rise to different opinions on the same facts in different jurisdictions, A.G. Holder determined to vacate the Silva-Trevino decision in full.
However, A.G. Holder did indicate that nothing in his order would affect any BIA determination that an offense included “reprehensible conduct and some form of scienter” (Decision at footnote 3) and is or is not a crime involving moral turpitude for that reason. Therefore, the basic case law defining crimes involving moral turpitude still stands- that is, a CIMT is defined as a crime in which the wrongdoer’s conduct is base, reprehensible, against the laws of society, includes a bad intent or depraved intent, and is contrary to the generally accepted principles of a civilized society.
IMPLICATIONS FOR CRIMINAL DEFENSE & IMMIGRATION COUNSEL
With this decision, no longer can immigration judges and the BIA go on a “fishing expedition” to somehow or the other implicate an alien as having been convicted of a crime involving moral turpitude. This decision therefore breathes new life into immigration defense strategies and allows criminal defense attorneys to craft more creative plea agreements with prosecutors which would have a far lesser chance of being implicated as CIMT’s.
The AG’s opinion in Silva-Trevino, issued at 26 I&N Dec. 550 (A.G. 2015), brings this long and tortured saga of Silva-Trevino to a close – for now! It is clear from this decision that while the categorical approach still stands since it is based on the statute, the two extensions of the categorical approach, namely the “modified categorical” and the “everything else” approaches have been clearly rejected. However, the Immigration Courts and the BIA are clearly instructed to continue to determine whether a crime involves moral turpitude based on the scienter (intent) and the elements of the state or federal criminal statute.
However, the final chapter in Silva-Trevino still remains to be written, as A.G. Holder explicitly instructed the Board to come up with some other framework to determine whether a particular criminal offense is a crime involving moral turpitude under the Immigration & Nationality Act. Stay tuned for further details!
About the author: Attorney Farhad Sethna has practiced law for over 20 years. Since 1996, he has been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio. He is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. With offices in Cuyahoga Falls, Akron and Dover, Ohio, Attorney Sethna represents clients in all types of immigration cases. Our number is: (330)-384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.
This is only general legal information. Please consult a qualified immigration attorney for advice on your specific case.