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After the Attorney General’s 2015 decision (“Silva-Trevino 2”), that vacated the 2008 precedent decision in Matter of Silva-Trevino (“Silva-Trevino 1”), the Board of Immigration Appeals (“BIA”) just developed an important uniform standard that has wide applicability to immigration and criminal law. The case was remanded to the BIA to determine whether a particular criminal offense is a crime involving turpitude (“CIMT”). Such a determination is very important because if a person’s conviction is found to be CIMT, it is much more difficult, and sometimes impossible, for that person to become a permanent resident.

The “new” BIA framework adopts the well-established two part test reaffirmed by the Supreme Court in Moncrieffe and Descamps: (1) the categorical approach and (2) the modified categorical approach. When applying part 1, the “realistic probability” test is used to determine whether a crime is categorically a CIMT. The realistic probability test focuses on the minimum conduct that has a realistic probability of being prosecuted under the statute of conviction. If a person could be convicted of a CIMT under that minimum conduct, then that conviction is a CIMT.

If the CIMT analysis is clear after part 1, the inquiry ends there. If it is not clear after part 1, the analysis moves to part 2: the modified categorical approach. In part 2, the analysis focuses on the record of conviction. The Court or other decision-maker is not allowed to look outside of the record of conviction. When the record of conviction is conclusive, then the inquiry ends.

Under old BIA precedent, if the record is inconclusive, the burden would shift to the immigrant to prove that he or she was not convicted of a CIMT. If unable to do so, the Court would conclude that the conviction is a CIMT. However, there are a number of Circuit Court decisions that hold the opposite.

Under this new BIA decision, it is unclear what the outcome is in this scenario. That is because it appears that the BIA leaves it up to each Circuit Court to decide. Moreover, the BIA disposed of Silva-Trevino 2 under the categorical approach and stopped their inquiry at step one. Here in the Tenth Circuit, when the record of conviction is inconclusive, it appears that the burden shifts to the immigrant under Garcia v. Holder. However, this matter is still being litigated and it is likely to make its way to the Supreme Court at some point.

This new framework from the BIA solidifies the continuing trend of Circuit Court decisions and signals a clear return to the traditional two-step test. It remains to be seen how the various Circuit Courts will treat this recent BIA precedent decision. At least it is a step in the right direction in setting a clearer and more uniform analytical framework.

If you have any criminal convictions, please contact an attorney at the Joseph & Hall P.C. to do a complete analysis. This area of law is ever evolving and we will continue to monitor and report on the state of the law.

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