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“Crimmigration” and the Repeal of Silva Trevino

On Behalf of | May 27, 2015 | Immigration


So I’m going to take a moment to move away from politics and instead discuss some positive developments in the world of “crimmigration.”

On April 10, 2015, former Attorney General Eric Holder vacated in its entirety the November 7, 2008 opinion of Matter of Silva-Trevino,[1] finding that because the Circuit Courts were split and at least two Supreme Court decisions cast doubt on its continued validity, the opinion was no longer useful in determining whether a particular criminal offense is a Crime Involving Moral Turpitude (“CIMT”) under the Immigration and Nationality Act (“INA”).  What the heck am I talking about?

Back in 2008, then Attorney General Robert Mukasey issued the decision Matter of Silva-Trevino (commonly referred to as Silva-Trevino I), which allowed Immigration Judges to find a foreign national deportable from the United States on the basis of alleged facts never established (i.e., proven) in the foreign national’s criminal case which formed the basis of his or her removal (i.e., deportation) proceedings.

Since this decision, five Circuit Courts of Appeals have rejected Silva-Trevino I.  Essentially what was happening was Immigration Judges were re-trying criminal cases in their own courts, and in doing so, they were considering (often unproven) facts that were outside of the foreign national’s Record of Conviction in his or her criminal proceedings.[2]

This was problematic on at least two levels.  First, it created great difficulty for criminal defense lawyers to properly advise their clients regarding the potential immigration consequences of taking a plea to certain criminal charges.  Second, many of the respondents in removal proceedings were individuals who were detained and without counsel, and who had previously given up their right to trial in their criminal proceeding and agreed to plead guilty with the intent of avoiding the immigration consequences presumably associated with their pleas.

Former Attorney General Holder’s order vacating Silva-Trevino I and its accompanying opinion (commonly referred to now as Silva-Trevino II) cited Supreme Court case law which makes it very clear that any inquiry as to whether a criminal offense is a CIMT for immigration purposes in the future should not go beyond the Record of Conviction.[3]

What does all this mean in practice?  Noncitizens can be deported from the United States if they have been convicted of a CIMT (and in some cases, if they’ve been convicted of two CIMT’s).[4]  Examples of CIMT’s under various state case law include, without limitation, fraud and theft offenses, offenses in which intentional bodily harm is caused, and various sex-related offenses.

To determine whether a noncitizen has been convicted of a CIMT, immigration officials have generally looked to the “inherent nature” of the offense as opposed to what the defendant actually did in a particular case.  Simply stated, the facts of the case are irrelevant.  This approach is called the “categorical” approach.”

A few weeks before George W. Bush’s presidency ended, former Attorney General Mukasey issued Silva-Trevino I, which dramatically changed the playing field, and essentially allowed Immigration Judges in certain cases to examine evidence beyond the Record of Conviction to assess whether the defendant’s conduct which formed the basis of his or her conviction involved moral turpitude.

Silva-Trevino I first instructed Immigration Judges to use the traditional “categorical” approach to determine whether a conviction constituted a CIMT.  Again, under this analysis, the defendant’s actual conduct was irrelevant.  The only question that needed to be answered was whether the elements of the statute of conviction either necessarily fall within the case law definition of a CIMT or never do so.  If the Immigration Judge was unable to determine that the prohibited conduct under the statute either always or never involved moral turpitude, then the Immigration Judge was instructed to review the Record of Conviction.[5]  Again, the inquiry would end if the court was able to determine whether or not the defendant was necessarily convicted of a CIMT.  If the modified categorical approach did not resolve the question one way or the other, then Silva-Trevino I allowed for the Immigration Judge to consider “any additional evidence the adjudicator determines is necessary or appropriate to resolve adequately the moral turpitude question,” whether or not it was contained in the formal Record of Conviction.[6]

As indicated earlier, five federal circuit courts rejected Silva-Trevino I, essentially holding that where immigration consequences are premised on a “conviction,” the immigration statutes are unambiguous in prohibiting an Immigration Judge (or any adjudicator for that matter) from considering simply alleged facts, including evidence outside the Record of Conviction.[7]  Indeed, this is what Silva-Trevino II stands for; that is Attorney General Holder’s order prohibits an Immigration Judge from using evidence outside the record of conviction in determining whether an offense involves moral turpitude. Consequently, criminal defense attorneys are now able to assess whether an offense involves moral turpitude and to help their noncitizen client avoid such a designation.  This is good news for all.


[1] Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008).

[2] Immigration Judges were considering evidence outside of the Record of Conviction (e.g., the charging document, bill of particulars, verdict or judgment, sentence, minute entries, written plea [if there was one], jury instructions [if there was a trial], presentence report, or probation report) in order to determine whether a foreign national was removable from the United States on the basis of a conviction of a CIMT.

[3] Matter of Silva-Trevino, 26 I. & N. Dec. 550 (A.G. 2015).

[4] See 8 U.S.C. §§ 1182(a)(2)(A), 1227(a)(2)(A)(i), (ii).

[5] This part of the inquiry is generally referred to as the “modified” categorical approach.

[6] Silva-Trevino I at 704.

[7] Silva-Trevino v. Holder, 742 F.3d 197 (5th Cir. 2014); Olivas-Motta v. Holder, 716 F.3d 1199 (9th Cir. 2013); Prudencio v. Holder, 669 F.3d 472 (4th Cir. 2012); Fajardo v. U.S. Att’y Gen., 659 F.3d 1303 (11th Cir. 2011); and Jean-Louis v. Att’y Gen. of U.S., 582 F.3d 462 (3d Cir. 2009).