On June 12, 2017, the Board of Immigration Appeals (BIA) issued Amicus Invitation No. 17-06-12 [PDF version]. The Amicus Invitation, titled “Modified Categorical Approach & CIMTS),” welcomes interested members of the public to file amicus curiae briefs with the BIA by July 12, 2017, addressing the following issues (paraphrased):
- Is the Board precluded from using the modified categorical approach for an indivisible or means-based statute within the context of a crime involving moral turpitude (CIMT) determinations when the requirement in question is whether the conduct involved was reprehensible, which is a subjective determination and not an element (something that must be proven to convict) of the state offense?
- Do the “three basic reasons for adhering to an elements-only inquiry” set forth in the Supreme Court of the United States decision in Mathis v. United States, 136 S.Ct. 2243, 2252-53 (2016) [PDF version], have force in the CIMT context?
- Do the answers to the first two questions require modification in the Board's published decision in the Matter of Silva-Trevino, 26 I&N Dec. 826 (BIA 2016) [PDF version]. If so, how?
When determining whether a criminal conviction is an immigration offense under the Immigration and Nationality Act (INA), the Board is generally restricted in the type of evidence that it may evaluate. Mathis clarified when courts may look beyond the language of the statute to determine whether the criminal offense falls within a federal provision (Mathis dealt specifically with a federal sentence-enhancement statute, but it has also been applied to the INA), and when courts and adjudicators are limited to examining only the language of the statute of conviction. If a statute is indivisible, the Board is limited to examining the text of the statute.
In the Amicus Invitation, the Board is asking questions specific to determining whether a conviction is for a CIMT under the INA. The questions consider whether the conviction in question was in violation of an indivisible statute, meaning one where the Board would normally be prohibited from looking beyond the language of the statute of conviction. Specifically, the Board is looking for opinions on whether it may nevertheless in such a case look beyond the record of conviction to determine if the alien's conduct was “reprehensible,” which of course is a subjective determination that arises in the CIMT context rather than an element that would be required for a conviction. More broadly, the Board seeks guidance on whether the test set forth in Mathis should apply in the CIMT context at all. Finally, the Board is examining, depending on the answers to the first two questions, whether it should modify its decision in the third Silva-Trevino case.
This issue will bear watching for two reasons. Firstly, being found to have committed a CIMT carries the potential for very serious immigration consequences. Secondly, CIMTs reach a broad range of conduct, and therefore represent a relatively common immigration issue in the inadmissibility and removal contexts. Any change to how the Board handles CIMT adjudications would be highly significant.
To learn more about the issues presented in the Amicus Invitation, please see our comprehensive articles on Mathis [see article] and Silva-Trevino [see article]. Please see also our article on a series of cases discussing the current state of the categorical approach and the modified categorical approach in immigration law (includes Mathis) [see blog].