Silva Trevino III: Evidentiary Standard for Relief for those who Engaged in the Sexual Abuse of a Minor

 

Update

On April 5, 2017, the Board clarified its decision in the instant case in a new published decision titled Matter of Jimenez-Cedillo, 27 I&N Dec. 1 (BIA 2017). In Jimenez-Cedillo, the Board set forth the circumstances in which a sexual offense in violation of a statute intended to protect children is a categorical crime involving moral turpitude when the statute requires to culpable mental state as to the age of the child. Please see our full article on the Matter of Jimenez-Cedillo to learn more [see article].

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

On October 12, 2016, the Board of Immigration Appeals (BIA) issued a precedent decision in the Matter of Silva-Trevino (“Silva-Trevino III”), 26 I&N Dec. 826 (BIA 2016) [PDF version]. This decision was the third in line on the same issue after the Matter of Silva-Trevino (“Silva-Trevino I”), 24 I&N Dec. 687 (AG 2008) [PDF version] and the Matter of Silva-Trevino (“Silva-Trevino II”), 26 I&N Dec. 550 (AG 2015) [PDF version].

Silva-Trevino III is most noteworthy because the Board established a uniform rule for adjudicating whether a criminal conviction is for a CIMT. We discuss the decision [see article] and the case history [see article; blog] in detail on site. However, Silva-Trevino III contained a separate issue that the Board also reached after finding that the respondent had not been convicted of a CIMT. In Silva-Trevino III, the Board held that “[a]n alien who has engaged in misconduct involving sexual abuse of a minor is not required to make a heightened evidentiary showing of hardship or other factors to establish that an application for relief warrants a favorable exercise of discretion.” In this article, we will discuss Silva-Trevino II and Silva-Trevino III with respect to the specific issue of whether an alien who engaged in sexual abuse of a minor is required to meet heightened requirements for establishing eligibility for relief. Please see the articles linked to earlier in this passage to learn about the Silva-Trevino decisions with respect to CIMTs.

Underlying Facts

The respondent in Silva-Trevino, an LPR, pled no contest to the offense of indecency with a child found in section 21.11(a)(1) of the Texas Penal Code. He was charged as removable under sections 101(a)(43)(A) and 237(a)(2)(A)(iii) of the Immigration and Nationality Act (INA) as an alien who had been convicted of an aggravated felony for the sexual abuse of a minor. The respondent conceded removability, but sought relief in the form of adjustment of status to that of permanent residency. The main issue in the three Silva-Trevino decisions was whether the respondent's conviction was for a CIMT. After it was found in Silva-Trevino III that the respondent's conviction was not for a CIMT, the Board moved next to determine whether the respondent was eligible for relief and the standard that he would be required to meet as an alien who had engaged in misconduct involving the sexual abuse of a minor.

Issue

In Silva-Trevino II, dec. at 556, the Attorney General instructed the Board to resolve the following issue:

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.

In posing the question, the Attorney General cited to a different Attorney General precedent decision in the Matter of Jean, 23 I&N Dec. 373 (AG 2002) [PDF version]. In Matter of Jean, the Attorney General held that aliens who have committed violent or dangerous crimes would not be eligible for a waiver to adjust from refugee status to permanent resident status absent “extraordinary circumstances” or the showing that the denial of status would result in “exceptional and extremely unusual hardship.” Furthermore, the decision held that depending on the gravity of the offense, even a showing of exceptional and extremely unusual hardship may be insufficient.

In short, the question was whether a standard such as articulated in Jean and in 8 C.F.R. 212.7(d) (imposing the same standard on applicants for section 212(h) waivers who committed violent or dangerous crimes) should be imposed on those who commit criminal acts constituting the sexual abuse of a minor.

Board's Analysis and Decision in Silva-Trevino III

The Board's analysis and resolution of the issue comes at Silva-Trevino III, dec. at 836-37.

After noting the question posed by the Attorney General and the precedent in the Jean, the Board moved on to its discussion of the issue. The Board noted that the Department of Homeland Security (DHS) took the position in Silva-Trevino III that the Board should resolve the issue by imposing a heightened evidentiary standard for relief on aliens who engaged in criminal acts constituting the sexual abuse of a minor. Under the DHS's position, such aliens would be required to establish that they would suffer “exceptional and unusual hardship” in the event that they were removed or to present other “extraordinary factors.”

However, the Board declined to adopt the DHS's suggestion and instead concluded “that it is not necessary to devise such an additional framework.”

The Board explained that “there is a well-established framework for establishing discretionary determinations.” Under this framework, adjudicators must weigh the positive factors in favor of granting relief against the negative factors that weigh against, with the applicant for relief ultimately bearing the burden of establishing that he or she merits a favorable exercise of discretion. The Board cited to its precedent decision in the Matter of C-V-T-, 22 I&N Dec. 7, 11-12 (BIA 1998) [PDF version], in explaining that “where negative factors grow more serious, it becomes incumbent upon the alien to introduce additional offsetting evidence, which in some cases may involve unusual or outstanding equities.” In short, this means that when there are “more serious” negative factors weighing against the favorable exercise of discretion, the alien necessarily will be required to submit “additional offsetting evidence” to establish that he or she merits a favorable exercise of discretion. Citing again to the Matter of C-V-T-, the Board explained that, where the negative factors involve a criminal record, rehabilitation, or a lack thereof, may be relevant to the analysis.

In the Matter of Silva-Trevino II and III, both the Attorney General and the Board found that, in determining whether a conviction is for a CIMT, adjudicators may not look at evidence outside the record of conviction. However, the Board explains in Silva-Trevino III, adjudicators are not so encumbered when assessing whether an alien with a criminal conviction merits the favorable exercise of discretion for discretionary relief. This means that, in determining whether an alien with a criminal conviction merits the favorable exercise of discretion for immigration relief, adjudicators are not restricted to only examining the language of the statute (categorical approach) or the record of conviction (modified categorical approach). As an example, the Board cited to its decision in the Matter of Thomas, 21 I&N Dec. 20, 23 (BIA 1995) [PDF version], wherein it held that evidence of unfavorable conduct may be weighed as negative factors in discretionary determinations even if the conduct did not result in a conviction.

With respect to the issue in Silva-Trevino III, the Board explained that adjudicators may weigh factors such as the “age of the victim and any other factors relevant to determining the full scope of the conduct and harm involved” in considering whether an alien who was convicted of an offense involving the sexual abuse or mistreatment of a minor merits the favorable exercise of discretion for immigration relief. These factors may be weighed regardless of whether they were elements of the alien's conviction (e.g., with regard to the CIMT determination, the Board held that adjudicators could not look beyond the record of conviction to determine if the respondent knew or could have reasonably known that his victim was a minor). The Board noted that adjudicators already have the authority to afford weight to both positive and negative factors in a case involving the sexual abuse of a minor. Additionally, the Board acknowledged that there are cases in which “an alien's criminal acts are so severe that they cannot be outweighed by positive factors,” see the Matter of Burbano, 20 I&N Dec. 872, 878 (BIA 1994) [PDF version].

Upon finding that the already-existing framework was sufficient “because it accounts for the particular evidence of each case,” the Board remanded Silva-Trevino III to the Immigration Judge for a determination of whether the respondent merited the favorable exercise of discretion in light of all of the relevant positive and negative factors.

Conclusion

Although Silva-Trevino III is primarily noteworthy for the precedent it establishes for CIMT determinations, its decision regarding discretionary determinations for those convicted of offenses or who engaged in offenses involving the sexual mistreatment or abuse of a minor should not be overlooked. Had the DHS's position prevailed, such individuals would have had to clear an extremely high bar to establish eligibility for relief reserved only for those who committed “violent or dangerous crimes” in limited contexts.

However, the Board opted instead to have adjudicators apply the normal framework for discretionary determinations in such cases. Nevertheless, an alien who has been convicted of an offense involving the sexual abuse of a minor will likely have a very high, if not impossible, bar to clear for establishing eligibility for relief. The Board's decision ensures that such determinations will continue to be made on a case-by-case basis. An alien seeking relief from removal should always consult with an experienced immigration attorney.