Matter of Silva Trevino III: New Approach to Determining Whether Conviction is for a CIMT

Matter of Silva Trevino


Update (June 13, 2017): The Board issued an Amicus Invitation requesting briefs on whether it should apply the modified categorical approach in certain CIMT cases in order to determine whether the underlying conduct leading to a conviction was “reprehensible.” The Board specifically asks briefs to address whether it should modify the Matter of Silva-Trevino, 26 I&N Dec. 826 (BIA 2016). Please see our blog on the issue to learn more [see blog]. We will update the site if the Board makes any modifications to the Silva-Trevino III.

Introduction: Matter of Silva-Trevino, 26 I&N Dec. 826 (BIA 2016)

On October 12, 2016, the Board of Immigration Appeals (BIA) issued an important decision in the Matter of Silva-Trevino (“Silva-Trevino III”), 26 I&N Dec. 826 (BIA 2016) [PDF version]. This decision followed two Attorney General (AG) precedent decisions in the same case in the Matter of Silva-Trevino (“Silva-Trevino I”), 24 I&N 687 (AG 2008) [PDF version], and the Matter of Silva-Trevino (“Silva-Trevino II”), 26 I&N Dec. 550 (AG 2015) [PDF version].

In Silva-Trevino I, then-Attorney General Michael Mukasey dramatically increased the authority of immigration adjudicators to look beyond the record of conviction to determine whether a specific criminal conviction was a crime involving moral turpitude (CIMT). In Silva-Trevino II, then-Attorney General Eric Holder vacated Silva-Trevino I in its entirety, thus restoring the status quo that existed prior to Silva-TrevinoI, which prohibited adjudicators from looking beyond the record of conviction to determine whether an alien's conviction was for a CIMT.

In Silva-Trevino III, the Board held that the categorical and modified categorical approaches provide the proper framework for assessing whether a criminal conviction is a CIMT. With regard to the categorical approach, the Board held that adjudicators must use the “realistic probability test,” which focuses on the minimum conduct under the statute in question that has “a realistic probability of being prospected” in determining whether the statute is a categorical CIMT. The modified categorical approach allows adjudicators to consider the record of conviction, if the conviction is in violation of a divisible statute, in order to determine whether the person was convicted of a provision of a statute that is for a CIMT rather than for a provision that is not.

In this article, we will examine the Matter of Silva-Trevino with respect to its discussion of how to determine whether a conviction is a CIMT. Although we will discuss the case history from Silva-Trevino I, Silva-Trevino II, and the Fifth Circuit decision in Silva-Trevino v. Holder, 742 F.3d 197 (5th Cir. 2014) [PDF version], we discuss the previous cases in far more detail in our full article [see article]. Furthermore, we discussed specifically Silva-Trevino I and Silva-Trevino II in an analysis and opinion blog post [see blog].

Silva-Trevino III addressed an additional issue pertaining to the evidentiary standard that an alien who has been convicted of misconduct involving sexual abuse of a minor must meet in order to establish eligibility for a favorable exercise of discretion in the form of relief from the adverse immigration consequences of such a conviction. We address this issue in a short companion article to this post [see article].

Facts and Procedural History: 26 I&N Dec. at 827-30

Before beginning this section, please see our full article on the history of the Silva-Trevino cases to learn about this in more depth [see article]. In this article, we will examine the case history in brief only insofar as it is necessary to understand the Board's decision in the instant case.

The respondent, a lawful permanent resident (LPR), was convicted, after pleading no contest in 2004, of violation of section 21.11(a)(1) of the Texas Penal Code for indecency with a child. On the basis of the conviction, the respondent was charged as removable under section 237(a)(2)(A)(iii) as an alien who had been convicted of an immigration aggravated felony under section 101(a)(43)(A) of the Immigration and Nationality Act (INA) for sexual abuse of a minor. (he was charged as removable under section 237(a)(2)(A)(iii)). The respondent conceded that he had been convicted of an immigration aggravated felony for sexual abuse of a minor and that he was removable as charged. Accordingly, that he was convicted of an aggravated felony is not at issue in the case.

After conceding removability, the respondent requested adjustment of status to that of an LPR as a defense from removal. In the initial proceedings, the Immigration Judge found that the respondent was ineligible for adjustment of status because he was an alien convicted of a CIMT, which rendered him inadmissible to the United States under section 212(a)(2)(A)(i)(I). The question of whether the respondent's Texas State conviction was a CIMT was the issue that would take three BIA decisions, two Attorney General decisions, and one Fifth Circuit Court of Appeals decision to ultimately resolve. The question hinged on the fact that the Texas State statute does not require the person to have reasonably known that his or her victim was a minor, because, under existing case law, in order for the conviction to be considered a CIMT, the person must have reasonably known that the victim was a minor. The litigation focused on exactly what sort of inquiry was permissible to determine whether the statute was for, and whether the conduct that led to the conviction constituted, a CIMT.

The following is a brief history of how the case that ultimately led it to be resolved by the Board in Silva-Trevino III. We would again like to remind you to see our full article to learn the issue in greater detail.

In 2007, the Board found that the conviction was not for a CIMT because the statute covered conduct that would not be a CIMT, and the record of conviction did not contain information that would have allowed the Board to find whether the respondent should have reasonably known that the victim was a minor.
Later that year, then-Attorney General Alberto Gonzales referred the case to himself for review. In 2008, then-Attorney General Michael Mukasey issued a precedent decision in Silva-Trevino I which vacated the Board's initial unpublished decision in the case. The AG decision required adjudicators to look at evidence beyond the record of conviction where neither the statute nor the record of conviction established conclusively whether the specific offense was a CIMT.
Following the framework of Silva-Trevino I, both the Immigration Judge and the Board found that the offense was a CIMT by examining evidence extrinsic to (or beyond) the record of conviction.
On appeal in 2014, the United States Court of Appeals for the Fifth Circuit rejected the analytical framework in Silva-Trevino I and, accordingly, vacated the Board's second decision on the issue. The Fifth Circuit made clear in Silva-Trevino v. Holder that it would not permit inquiries extrinsic to the record of conviction.
In 2015, before the Board could issue a decision consistent with the Fifth Circuit ruling in Silva-Trevino v. Holder, then-Attorney General Eric Holder vacated Silva Trevino I in Silva-Trevino II. In so doing, Silva-Trevino II prohibited adjudicators from examining evidence extrinsic to the record of conviction, thereby following the Fifth Circuit and four other circuits that had rejected the analytical framework in Silva-Trevino I. This meant that adjudicators would be restricted in determining whether a conviction was for a CIMT.

Issues Presented: 26 I&N Dec. at 829-31

In Silva-Trevino II, the Attorney General not only tasked the Board with resolving the Matter of Silva-Trevino in a manner consistent with controlling precedent, but he also tasked the Board with creating a uniform standard for similar adjudications to apply nationwide where there is no contrary federal court precedent. Specifically, the Attorney General directed the resolution of the following issues (paraphrased):

1. How are adjudicators to determine whether a particular criminal offense is a CIMT under the INA?
2. When, and to what extent, may adjudicators use a modified categorical approach and consider a record of conviction (as opposed to just the language of the statute and the history of its application) to determine whether a certain conviction was for a CIMT.

Accordingly, the Board on remand would first have to resolve the Attorney General's questions and, second, apply the new analytical framework to the instant case.

Uniform Standard for Applying Categorical and Modified Categorical Approach: 26 I&N Dec. at 830-33

To start, the Board held that in order to determine whether an offense is for a CIMT, “the categorical and modified categorical approaches apply.” This notably excludes the assessment of evidence extrinsic to the record of conviction, which was considered to be properly within the scope of inquiry under the circumstances specified in the now vacated decision in Silva-Trevino I.

The Board began by noting that both the government and the respondent agreed that the categorical approach and modified categorical approach constitute the proper framework for determining whether a crime is a CIMT under the INA. The Board added that the parties also agreed that the concept of statutory divisibility, which is necessary for determining which approach applies to a given statute, is governed by the Supreme Court decision in Descamps v. United States, 133 S.Ct. 2276 (2013) [PDF version] (please see our full article on Descamps to learn more [see article]). In addition to this having been the position of five circuit courts in rejecting the framework in Silva-Trevino I, the Board had relied on the categorical approach for over half a century before Silva-Trevino I was issued. To this effect, the Board cited to the Matter of Short, 20 I&N Dec. 136, 137-38 (BIA 1989) [PDF version], and the Mater of S-, 2 I&N Dec. 353 (BIA, AG 1945).

The Board then explained in Silva-Trevino III that, to the maximum extent possible as allowed by the “divergent rulings in the Federal appellate court,.” it would apply the categorical and modified categorical approaches as defined in Supreme Court precedent to create a uniform approach for adjudicating questions of whether an offense is a CIMT, to the maximum extent possible as allowed by the “divergent rulings in the Federal appellate courts.”

After reading this article, please see a collection of our resources on cases about the categorical and modified categorical approaches to study these important principles of statutory interpretation in-depth [see blog].

Categorical Approach

The Board directed that the first step in an inquiry of whether a conviction for a State or Federal offense is a CIMT is to “examine the State or Federal statute defining the crime of conviction to see if it fits within the generic definition of a [CIMT].” In short, this means that the statute must be analyzed to determine whether any possible offense that may lead to a conviction is a CIMT, or whether it encompasses within its scope offenses that are not CIMTs.

In undertaking the categorical approach, the Board held that adjudicators must apply the “realistic probability test” unless controlling circuit precedent dictates otherwise. Under the realistic probability test, adjudicators must “focus on the minimum conduct that has a realistic probability of being prosecuted under the statute of the conviction, rather than on the facts underlying the respondent's particular violation of that statute.” To this effect, the Board cited to the Supreme Court decisions in Moncrieffe v. Holder, 133 S.Ct. 1678, 1684-85 (2013) [PDF version], and Gonzales v. Deuans-Alvarez, 549 U.S. 183, 193 (2007) [PDF version]. The realistic probability test requires a person charged with a CIMT to “at least point to his own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues” (Duenas-Alvarez at 193). In short, this means that the person charged with having committed a CIMT must find evidence of actual cases where the statute was construed to cover an offense that is not a CIMT, and that it would not be necessarily sufficient to argue that the statute could only hypothetically be applied in such a manner.

However, the Board explained why it is not possible at this time for the realistic probability approach to be applied nationally. First, Moncrieffe used the realistic probability test specifically to determine whether an offense constitutes an aggravated felony. Federal circuit courts have thus far split on whether Moncrieffe applies in the CIMT context as well.

The Board notes that the Seventh, Eighth, Ninth, and Tenth Circuits have all adopted the realistic probability standard for adjudicating whether a conviction is for a CIMT. They have done so in the following cases:

Cano-Oyazabal v. Holder, 774 F.3d 914, 917 (7th Cir. 2014) [PDF version]
Villatoro v. Holder, 760 F.3d 872, 877-79 (8th Cir. 2014) [PDF version]
Leal v. Holder, 771 F.3d 1140, 1145 (9th Cir. 2014) [PDF version]
Rodriguez-Heredia v. Holder, 639 F.3d 1264, 1267 (10th Cir. 2011) [PDF version]

The Board noted examples of cases in which other circuits adopted the categorical approach for such inquiries without “expressly addressing” the use of the realistic probability test:

Efstathiadis v. Holder, 752 F.3d 591, 595 (2d Cir. 2014) [PDF version]
Prudencio v. Holder, 669 F.3d 472, 484 (4th Cir. 2012) [PDF version]
Yeremin v. Holder, 738 F.3d 708, 715 (6th Cir. 2013) [PDF version]
Walker v. U.S. Att'y Gen., 783 F.3d 1226, 1229 (11th Cir. 2015) [PDF version]

In De Silva Neto v. Holder, 680 F.3d 25 (1st Cir. 2012) [PDF version], the First Circuit left for another day the question of whether to adopt the realistic probability test.

While the above Circuits either adopted the realistic probability test or have not made a definitive statement on the issue, the Third and Fifth circuits have explicitly rejected its application in the CIMT context:

Jean-Louis v. Att'y Gen. of the U.S., 582 F.3d 462, 481-82 (3d Cir. 2009) [PDF version]
Gomez-Perez v. Lynch, 829 F.3d 323, 327 (5th Cir. 2016) [PDF version]

The Board noted that it held in the Matter of Chairez, 26 I&N Dec. 819, 820 (BIA 2016) [PDF version] [see article] that it is not entitled to administrative deference regarding the application of the categorical approach. Therefore, because of the existence of the controlling contrary precedent in the Fifth Circuit, the Board was prevented from applying the realistic probability approach in Silva-Trevino III. Instead, the Fifth Circuit requires the use of the “minimum reading” approach, which we will see that the Board proceeded to apply in the instant case. It is worth noting that the Fifth Circuit is, at this time, the only circuit which specifically requires the “minimum reading” approach for CIMT inquiries while specifically rejecting the realistic probability approach (the Third Circuit does not, although it also rejected the “realistic probability” approach).

It is interesting that this case, where the Board was tasked with creating a “uniform approach” for CIMT inquiries, in fact serves to highlight the difficulty in doing so amidst competing circuit precedent.

Modified Categorical Approach

The Board explained that in a situation in which the statute of conviction includes some offenses that are CIMTs and some offenses that are not, adjudicators must first determine whether a statute is “divisible.” If the statute is divisible, adjudicators may apply the “modified categorical approach.” The Board cited to both the Descamps, 133 S.Ct. at 2281, 2283, and its own precedent decision in the Matter of Chairez, 26 I&N Dec. at 819-20, for precedent on determining divisibility. Citing to these two cases, the Board explained when a statute is “divisible” such that it is amenable to a modified categorical inquiry:

1. The statute lists multiple discrete offenses as enumerated alternatives or defines a single offense by reference to disjunctive sets of “elements,” more than one combination of which could support a conviction; and
2. At least one, but not all, of those listed offenses or combinations of disjunctive elements is a categorical match to the relevant generic standard.

In short, there are two ways in which a statute may be divisible. First, the statute may list several discrete offenses in the disjunctive (e.g., offense “x,” “y,” and “z”). Second, the statute may list a single offense (“x”) but several disjunctive elements for satisfying “x” (meaning different ways of committing offense “x”). So long as the element to satisfy the offense would have to be proven in order to sustain a conviction to the exclusion of some or all of the other elements, the statute may be considered divisible. If jury unanimity would not be required with respect to one of the elements, the statute may not be considered divisible.

Under the modified categorical approach, adjudicators may look at the record of conviction to determine which discrete offense a person committed or the means by which the person committed the single offense under the statute. After determining the offense or means that lead to the conviction, adjudicators may then use the categorical inquiry to determine whether the offense was a CIMT. It is important to note, however, that the modified categorical approach does not allow for the consideration of evidence extrinsic to the record of conviction, as was permitted by the now-vacated decision in Silva-Trevino I.

Analysis Specific to Silva-Trevino and the Board's Decision: 26 I&N Dec. at 833-38

Finally, the Board reached the specific statute in question in Silva-Trevino. First, the Board cited to its precedent decision in the Matter of Sejas, 24 I&N Dec. 236, 237 (BIA 2007) [PDF version], to explain that “moral turpitude” generally refers to conduct that is “inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.” The Board cited to the Fifth Circuit decision in Nino v. Holder, 690 F.3d 691, 695 (5th Cir. 2012), which held, that a CIMT requires as elements “reprehensible conduct and a culpable mental state” (quoting from Silva-Trevino III).

The Board explained that in Silva-Trevino I, the AG held that a crime involving intentional sexual conduct by an adult with a child is only a CIMT if the perpetrator knew or should have known that the victim was a minor. Although Silva-Trevino I was vacated, the Attorney General noted in Silva-Trevino II that the vacatur did not render all of the reasoning in Silva-Trevino I invalid. Accordingly, the Board stated that it found “no reason to deviate from this holding” It is worth noting that the instant case deals with an offense for sexual contact and not for statutory rape. In a footnote, the Board reserved the question of whether a statutory rape offense that does not require that the perpetrator “knew or should have known that the victim was a minor” is a categorical CIMT.

Because controlling Fifth Circuit precedent requires the minimum reading approach, as opposed to the Board's preferred realistic probability standard, the Board applied the minimum reading approach to section 21.11(a)(1) of the Texas Penal Code.

The Board explained that section 21.11(a)(1) criminalized engaging in sexual contact with the child or causing the child to engage in sexual contact. The statute covered acts intended to arouse or gratify the sexual desire of a person and included touching by a person of the anus, breast, or any part of the genitals of a child or touching by a person of any part of the child with the anus, breast, or any part of the genitals of that person (includes touching through clothing). A provision of the statute found in section 21.11(b) provided an affirmative defense if the actor “was not more than three years older than the victim and of the opposite sex” and “did not use duress, force, or a threat against the victim at the time of the offense.”

The respondent noted that in Silva-Trevino I, the Attorney General found that section 21.11(a)(1) is not a categorical CIMT. The respondent further argued that the statute is divisible and, accordingly, that adjudicators should not be permitted to engage in the modified categorical inquiry. The Department of Homeland Security (DHS) argued that the offense was categorically a CIMT because there was no realistic probability that Texas would prosecute an individual under the statute for an offense that is not a CIMT.

However, the Board noted that under the Fifth Circuit's minimum reading inquiry, the statute was not categorically a CIMT. This is because the language of the statute does not encompass only offenses involving moral turpitude, but also offenses where the defendant may have reasonably believed that the victim was not a minor.

Furthermore, the Board suggested that the offense would not have been considered to be a CIMT under the realistic probability standard either, because there is case law in Texas that suggests that the statute would be used to cover offenses that were not CIMTs.

Finding that the statute was not divisible, the Board ended its inquiry and did not apply the modified categorical inquiry. The Board held that the respondent as not inadmissible for having been convicted of a CIMT, and it remanded the record for further consideration of his application for adjustment of status. The Board also withdrew any opinions that indicated that different tests should apply in determining whether an offense is for a CIMT (e.g., the Matter of Ahortalejo-Guzman, 25 I&N Dec. 465 (BIA 2011) [PDF version], and the Matter of Guevara Alfaro, 25 I&N Dec. 417 (BIA 2011) [PDF version]).


The Board's decision in Silva-Trevino III goes a long way toward establishing a uniform standard for determining whether a conviction is for a CIMT. It should be noted that the Board's preferred method of categorical inquiry, the “realistic probability standard,” is less favorable to aliens than the Fifth Circuit's “minimum reading approach.” This is because the realistic probability standard puts the onus on the alien to come up with case law showing that the statute had been applied to cover non-CIMTs, whereas the minimum reading approach does not. This issue will bear continued watching, as the existence of a circuit split may encourage the Supreme Court to eventually weigh in on the issue.

An alien charged with a CIMT should consult with an experienced immigration attorney for a full evaluation of his or her situation.