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Attorney General Withdraws Matter of Silva-Trevino, Strict Categorical Approach to Apply in CIMT Analysis


Attorney General Withdraws Matter of Silva-Trevino, Strict Categorical Approach to Apply in CIMT Analysis

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is great news for foreign nationals and for immigration courts that have struggled to give fair application to the now-withdrawn three-step approach from Silva-Trevino.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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