- Introduction: Matter of Silva-Trevino Case History
On October 12, 2016, the Board of Immigration Appeals (BIA) issued an important decision titled the Matter of Silva-Trevino (“Silva-Trevino III”), 26 I&N Dec. 826 (BIA 2016) [PDF version]. In Silva-Trevino III, the Board articulated a uniform standard for determining whether a particular criminal offense is a crime involving moral turpitude (CIMT). In this article, we will examine the case history of Silva-Trevino III to explain the series of decisions that led to the Board's most recent resolution of the issue. After reading this article, please read our full article on the decision in Silva-Trevino III to learn about the Board's reasoning with regard to CIMTs and what the decision means going forward [see article]. We also have a full article discussing Silva-Trevino III' with regard to the evidentiary standard for establishing eligibility for relief for an alien who engaged in conduct involving sexual abuse of a minor [see article]. The three previous cases on the issue are as follows:
- Matter of Silva-Trevino (“Silva-Trevino I”), 24 I&N Dec. 687 (AG 2008) [PDF version]
- Silva-Trevino v. Holder, 742 F.3d 197 (5th Cir. 2014) [PDF version]
- Matter of Silva-Trevino (“Silva-Trevino II”), 26 I&N Dec. 550 (AG 2015) [PDF version]
Please be sure to read our opinion piece on Silva-Trevino II, written contemporaneously with the decision and updated to reflect current events [see blog].
The respondent in the cases is a native and citizen of Mexico who was admitted to the United States as a lawful permanent resident (LPR) in 1962. In 2004, the respondent entered a plea of no contest to the criminal offense of “indecency with a child” under Title 5, Section 21.11(a)(1) of the Texas Penal Code. The Attorney General (AG) explained in Silva-Trevino I, at 690, that the statute criminalized engaging in sexual contact with a child under the age of 17 who is not the perpetrator's spouse, and provided that the perpetrator is more than three years older than the child and of the opposite sex. The AG explained that the Texas statute defines “sexual contact” to mean “any touching by a person, including through clothing, of the anus, breast, or any part of the child” or “any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person,” if “committed with the intent to arouse or gratify the sexual desire of any person.”
Silva-Trevino I, at 691, explained that the respondent was charged as removable as an alien convicted of an aggravated felony under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act (INA). The respondent did not contest that he had been convicted of an aggravated felony under section 101(a)(43)(A) (for sexual abuse of a minor). Rather, the respondent sought discretionary relief from removal through adjustment of status under section 245(a). The respondent argued that his conviction under the Texas statute did not fall under section 212(a)(2) of the INA and was thus not for a crime of moral turpitude (CIMT), thereby leaving him eligible for adjustment of status. The respondent based his argument that his conviction was not a CIMT on the fact that the Texas State statute does not require proof that a perpetrator had knowledge that the person with whom he or she had sexual contact with is a child. Accordingly, it would be possible to secure a conviction under the statute against a person who reasonably believed that his or her sexual contact was with a consenting adult.
The Immigration Judge who first heard the case rejected the respondent's arguments and found that he was ineligible to adjust status as an alien who was inadmissible under section 212(a)(2)(A)(i)(I) for having been convicted of a CIMT. This is because the Immigration Judge held that the conviction was categorically for a CIMT. However, in a non-precedent decision, the BIA reversed the Immigration Judge's decision and accepted the respondent's arguments. The Board's reasoning was that the Texas State statute by its terms criminalized some conduct that was not a CIMT because it did not require proof of knowledge of the victim's age, and it therefore found that the respondent had not been convicted of a CIMT, notwithstanding the particular facts of his case.
In 2007, then-Attorney General Alberto Gonzales referred the Board's unpublished decision in the Silva-Trevino to himself for review. The decision in Silva-Trevino I was subsequently issued by Gonzales's successor, then-Attorney General Michael Mukasey. As you read this section, please note that this decision has been vacated in its entirety by Silva-Trevino II,
First, the AG set forth a three-step process for determining whether a conviction is for a CIMT:
- Look to the statute of conviction under the categorical approach and determine whether there is a “realistic probability” that the statute would be applied to reach conduct that does not involve moral turpitude. In short, Silva-Trevino I explained at 697, the “realistic probability” method focuses the attention of adjudicators on the actual scope of the criminal statute and whether, at the time of the criminal proceeding in question, any actual (not hypothetical) cases existed where the statute was applied to cover conduct not involving moral turpitude. If the statute was found both to only proscribe CIMTs in its language and to have not been applied to cover non-CIMTs, an adjudicator would have to find that the statute was a categorical CIMT, and would not have to continue the inquiry.
- However, if the question cannot be resolved in the first step, the AG instructed adjudicators to use the modified categorical approach. This approach may only be used in the case that a statute is divisible. Under this step, adjudicators would look at the record of conviction, including the indictment, judgment of conviction, jury instructions, and a signed guilty plea or plea transcript. Step two would allow adjudicators to consider evidence regarding the proven conduct that led to the conviction to determine if the person had been convicted of a CIMT. This step would only be necessary if the language of the statute and its application was inconclusive with respect to the CIMT question.
- If step two were to not yield a conclusive result, the AG instructed adjudicators to consider “any additional evidence deemed necessary or appropriate” in order to determine if the conviction was a CIMT.
In summary, the AG decision was relatively unfavorable to persons charged with a CIMT under the INA. This is because the AG's approach did not stop at the first step, which was assessing whether there is a reasonable probability that the statute would be used to cover offense(s) not involving moral turpitude, or with the second step, which was to examine the record of conviction if the statute in question was divisible. Rather, the AG added a third step, requiring adjudicators to look to other evidence in the event that steps one and two did not produce a clear result.
With regard to the specific statute at question in Silva-Trevino I, the Attorney General held that if a statute is found to criminaize sexual contact with a person whom the defendant knew or should have known to be a child, then the statute would be a categorical CIMT. However, the AG held that in order for an offense to be a CIMT under the INA, the “crime must involve both reprehensible conduct and some degree of scienter, whether specific intent, deliberateness, willfulness, or recklessness.”
For the foregoing reasons, the AG remanded the matter to the Board for further consideration consistent with the AG opinion.
After taking the case on remand from the Attorney General, the Board found in an unpublished decision that the respondent in Silva-Trevino had been convicted of a CIMT. In order to reach this conclusion, the Board followed all three steps of inquiry set forth by the AG in Silva-Trevino I, and ultimately relied on “additional evidence” outside of both the language of the statute and the record of conviction. The Board looked at evidence, such as Silva-Trevino's “stipulations, testimony, and the victim's birth certificate.” See Silva-Trevino v. Holder at 197.
The respondent appealed to the United States Court of Appeals for the Fifth Circuit, which has jurisdiction over cases arising in Texas. The Fifth Circuit would ultimately reverse the Board's decision and reject part three of the AG's analytical framework for determining whether a conviction is for a CIMT. Relying on its decision in Amouzadeh v. Winfrey, 467 F.3d 451 (5th Cir. 2006) [PDF version], the Fifth Circuit held that its precedent did not permit adjudicators to look beyond the record of conviction in determining whether a conviction is for a CIMT.
The Fifth Circuit specifically rejected the government's arguments that the inadmissibility provision for CIMTs found in section 212(a)(2)(A)(i) of the INA is ambiguous such that it permits application of the third step from Silva-Trevino I.
The government argued that the relevant section also renders inadmissible an alien “who admits having committed” and “who admits committing” acts which constitute the essential elements of a CIMT. Accordingly, these provisions should allow adjudicators to consider evidence beyond the language of the statute and the record of conviction. However, the Fifth Circuit rejected this argument, holding that “convicted of” serves to distinguish that clause from the two “admits” clauses of the statute. In other words, when an alien has been convicted of a crime, it is not permissible to rely upon extra-judicial admissions when resolving whether the alien is removable for a CIMT.
The Fifth Circuit also rejected the applicability of the Supreme Court decision in Nijhawan v. Holder, 129 S.Ct 2294 (2009) [PDF version] and its own decision in Bianco v. Holder, 624 F.3d 265 (5th Cir. 2010) [PDF version]. Although both of these cases permitted adjudicators to look beyond the record of conviction, the Fifth Circuit found Nijhawan and Bianco distinguishable because they dealt with determining whether an offense fell within a subset of a category of convictions. For example, Nijhawan dealt with the INA's aggravated felony provision in section 101(a)(43)(M)(i), which covers an “offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.” However, the inadmissibility provision for CIMTs does not involve a subset of a category of convictions because the qualifying offenses under the statute are all CIMTs.
The Fifth Circuit also rejected the government's argument that it should follow Silva-Trevino I in the interest of ensuring uniform application of the law, noting that Silva-Trevino I had ironically caused a split among the circuits, with two circuits following the decision and five circuits, including the Fifth, declining to follow it.
Having found that the Board relied upon evidence beyond the record of conviction to determine that the alien had been convicted of a CIMT, the Fifth Circuit remanded to the Board for further proceedings consistent with its opinion.
In Silva-Trevino II, then-Attorney General Eric Holder issued an opinion vacating Silva-Trevino I in its entirety. The issue was specifically with regard to the third step of inquiry in Silva-Trevino I, which permitted adjudicators to consider factors beyond the record of conviction in determining whether an offense was for a CIMT. Silva-Trevino II listed several reasons for vacating Silva-Trevino I:
- Five circuits rejected Silva-Trevino I while two circuits accepted the decision. The circuit split meant that Silva-Trevino I had failed to accomplish its stated goal of “establish[ing] a uniform framework for ensuring that the [INA's] moral turpitude provisions are fairly and accurately applied.
- Several Supreme Court decisions rendered subsequent to Silva-Trevino I called the continued validity of Silva-Trevino I's framework into question. Silva-Trevino II referenced Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010) [PDF version]; Moncrieffe v. Holder, 133 S.Ct 1678 (2013) [PDF version]; and Kawashima v. Holder, 132 S.Ct. 1166 (2012) [PDF version]. All three of these decisions, in different immigration contexts, prohibited adjudicators from going beyond the categorical and modified categorical approaches to assess facts beyond the record of conviction.
After vacating Silva-Trevino I, the decision in Silva-Trevino II sets forth three issues that the Board may consider in the now-decided Silva-Trevino III and in similar cases (paraphrased from Silva-Trevino II at 556):
- How adjudicators are to determine whether a particular offense is a CIMT under the [INA];
- When, and to what extent, adjudicators may use a modified categorical approach to consider a record of conviction in determining whether an alien has been convicted of a CIMT and is thus inadmissible under section 212(a)(2) of the INA.
- Whether an alien who seeks a favorable exercise of discretion under the [INA] after having engaged in criminal acts constituting the sexual abuse of a minor should be required to make a heightened evidentiary showing of hardship or other factors that would warrant a favorable exercise of discretion (note that this issue pertains to seeking relief after having a conviction for sexual abuse of a minor rather than determining when a conviction is for a CIMT).
The ultimate result of the four Silva-Trevino cases is favorable to aliens who are defending themselves against charges that they committed a CIMT. Silva-Trevino I vested adjudicators with broad discretion to consider evidence outside of the language of the statute or record of conviction in determining whether an alien was convicted of a CIMT. In Silva-Trevino, this approach led to a finding that the alien had been convicted of a CIMT because of evidence outside of the record of conviction. However, the Attorney General's vacature of Silva-Trevino I dramatically narrowed the discretion of adjudicators in determining whether a conviction is for a CIMT. Under the Silva-Trevino II and III framework, adjudicators are limited to using the categorical or modified categorical approaches, with the specific approach depending on the language of the statute in question. This means that in order for an alien to be found to have been convicted of a CIMT, the statute itself must be a categorical CIMT or the statute must be divisible and the record of conviction must support that the alien was convicted of conduct constituting a CIMT.
To learn more, please read our full article on Silva-Trevino III [see article].