The Upshot
Last
week, Attorney General Eric Holder withdrew the decision in Matter of Silva-Trevino, 24 I&N Dec.
687 (A.G. 2008). This means that immigration
adjudicators should no longer be able to reference police reports or other
extraneous evidence when deciding whether a conviction constitutes a crime
involving moral turpitude (CIMT).
Instead, they will once again be strictly limited to review of the
record of conviction. This is great news
for foreign nationals and for immigration courts that have struggled to give
fair application to the now-withdrawn three-step approach from Silva-Trevino.
A Little Background
In 2008,
Attorney General Michael Mukasey issued an opinion in Matter of Silva-Trevino which set up a new framework for
immigration adjudicators to analyze whether a conviction constitutes a CIMT for
immigration purposes. Matter of Silva-Trevino, 24 I&N Dec.
687 (A.G. 2008). The decision allowed
adjudicator to look beyond the record of conviction in certain circumstances
“if doing so is necessary and appropriate” to ensure proper application of the
statutes moral turpitude provisions. Id. at 699. Under Silva-Trevino,
immigration judges were able to review “any additional evidence the adjudicator
determines is necessary or appropriate.”
Id. at 704.
In
practice, this meant that immigration judges would often resort to police
reports and be forced to conduct Silva-Trevino
hearings where they would try to determine facts surrounding past
convictions—sometimes decades old—through witness testimony and other disputed
evidence outside the record of conviction.
Immigration courts, where the rules of evidence do not strictly apply,
are particularly ill-suited for this kind of fact finding around past
events. The resulting hearings often bordered
on the absurd, with immigration judges forced to try to determine facts such as
whether a crime committed ten years prior was done “recklessly” or “knowingly.”
The
respondent in the Silva-Trevino case,
following a remand to the immigration judge and a subsequent appeal to the
Board of Immigration Appeals, filed a petition for review with the Fifth
Circuit Court of Appeals. On January 30, 2014, the Fifth Circuit rejected the
Attorney General’s approach in Silva-Trevino
as contrary to the plain language of the statute. Silva-Trevino
v. Holder, 742 F.3d 197, 200-06 (5th Cir. 2014). The Fifth Circuit became the fifth circuit to
reject the Silva-Trevino three-step
approach to analyzing CIMTs. See Olivas-Motta v. Holder, 746 F.3d
907, 911-16 (9th Cir. 2013)(amended opinion); Prudencio v. Holder, 669 F.3d 472, 480-84 (4th Cir. 2012); Fajardo v. U.S. Att’y Gen., 659 F.3d
1303, 1307-11 (11th Cir. 2011); Jean-Louis
v. Att’y Gen., 582 F.3d 462, 472-82 (3d Cir. 2009).
Because
of the five circuits having rejected the Silva-Trevino
approach and because the Supreme Court in Moncrieffe v. Holder, 133 S. Ct. 1678, 1690-92 (2013), made clear
that where a negative consequence hinges on “convicted” conduct the categorical
approach must apply, Attorney General Eric Holder vacated the Silva-Trevino decision on April, 10,
2015.
What’s Next?
The
Board of Immigration Appeals will likely address what the withdrawal of Silva-Trevino means for the analysis of CIMTs
in future published decisions, but what this should mean is that the days of
holding mini-evidentiary hearings on old convictions and referencing disputed
police reports to decide if a foreign national was convicted of a CIMT are
over.
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