Silva-Trevino is Vacated

Attorney General's decision in the Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. November 7, 2008), substantially expended the ability of an immigration judge to look beyond the record of conviction and take into account other considerations — often irrelevant and/or prejudicial- in order to determine removability of the noncitizen who had committed an offense subject to CIMT inquiry. This often made people who had committed minor criminal offenses to carry the disproportional burden in removal proceedings. For years — since November of 2008 when the decision was introduced — immigration advocates have been trying to convince the AG to retract the decision. Finally, it happened today.

Significance of the Retraction of the AG's Decision in Silva Trevino:

In Silva-Trevino, which has been the law of the land for almost seven years, AG held that an immigration judge had to engage in a multi-step inquiry into whether a crime committed by the respondent was one that involved moral turpitude (CIMT). Since CIMT, no matter how minor, often carries heavy immigration consequences, the way in which a determination is made whether the conviction was such, becomes paramount for the respondent. AG directed the Board of Immigration Appeals (BIA) and through it, the immigration judges nationwide to first look whether the statute of conviction carried a “realistic probability” under the categorical inquiry under the U.S. Supreme Court analysis in Gonzales v. Duenas-Alvarez, 549 US 183, 2007 - that “the State or Federal criminal statute pursuant to which the alien was convicted would be applied to reach conduct that does not involve moral turpitude”. That first approach was long in existence in the US. Immigration law but the inquiry had been more liberal and the probability did not have to be shown to be “realistic”. If the inquiry unambiguously determined whether the crime was CIMT, that ended the inquiry. If not, the second step was to be taken in this analysis. Under the second step analysis, the judge was allowed to engage in what was called a “modified categorical inquiry” which allowed for examination of the “record of conviction” including documents such as the indictment, the judgment of conviction, jury instructions, a signed guilty plea, and the plea transcript. Though expended from the general understanding of what the record of conviction included, the modified categorical approach was traditionally employed before as well. The third and most disturbing step added in the AG analysis was to take place when the record of conviction was still inconclusive in the opinion of the immigration judge as to whether the crime constituted CIMT. Under this step, the judge was allowed to “consider any additional evidence deemed necessary or appropriate to resolve accurately the moral turpitude question.” Under such inquiry, the judge was allowed to look at virtually anything having to do with the conviction thus making it very hard for the respondent to fight against a finding of CIMT.

Modified Categorical Analysis Is Again The Key To The Inquiry

As explained above, the first step in the AG's approach was a traditional analysis of the CIMT conviction under the well-established categorical approach to the elements of the crime. What the AG added in Silva-Trevino to this traditional approach was a requirement that the probability of a not CIMT crime covered under the statute of conviction in question was not just hypothetical, but reasonable that is the criminal statute of conviction had indeed been applied in the past in a factual situation that did not constitute a CIMT. Unambiguous solution of this question, according to the AG, would have ended the inquiry. The pre- Silva Trevino analysis would had employed the probability inquiry instead of the reasonable probability and when further analysis was warranted, would have stopped at the second prong of the analysis — the modified categorical approach, thus limiting the inquiry to the record of conviction. This state of affairs has now been restored with the Attorney General having vacated the opinion in Silva Trevino.

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