Manuel Olivas-Motta v. Eric Holder, Jr.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MANUEL OLIVAS-MOTTA, No. 10-72459

Petitioner,

Agency No.

v. A021-179-705

ERIC H. HOLDER, JR., Attorney

General, OPINION

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

October 13, 2011—San Francisco, California

Filed May 17, 2013

Before: Proctor Hug, Jr., Andrew J. Kleinfeld,

and William A. Fletcher, Circuit Judges.

Opinion by Judge Fletcher

Concurrence by Judge Kleinfeld

2 OLIVAS-MOTTA V. HOLDER

SUMMARY*

Immigration

The panel granted Manuel Olivas-Motta’s petition for

review of the Board of Immigration Appeals’ decision

concluding, on the basis of police reports, that his conviction

for endangerment under Arizona law constituted a crime

involving moral turpitude.

The panel held that a “crime involving moral turpitude”

(CIMT) is a generic crime whose description is complete unto

itself, such that “involving moral turpitude” is an element of

the crime and an Immigration Judge is limited to the record

of conviction to determine whether an alien was “convicted

of” a CIMT. The panel held that the Attorney General

wrongly decided, in his published precedential opinion

Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008),

that an IJ may rely on evidence outside the record of

conviction to determine whether a petitioner has been

convicted of a CIMT.

Judge Kleinfeld, concurring in the result, disagreed with

the majority’s wholesale rejection of deference to the Matter

of Silva-Trevino opinion, but would not address whether it

merits Chevron deference because the BIA’s reliance on the

police report in this case was mistaken. Judge Kleinfeld

would also find that Matter of Silva-Trevino, reasonably

construed, is not arbitrary or capricious, but that it was

misapplied in this case.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

OLIVAS-MOTTA V. HOLDER 3

COUNSEL

Kara L. Hartzler (argued), Florence, Arizona, for Petitioner.

Gregory Darrell Mack (argued), Senior Litigation Counsel,

United States Department of Justice, Washington, D.C., for

Respondent.

Peter L. Markowitz, Benjamin N. Cardozo School of Law

Immigration Justice Clinic, New York, New York, for Amici

Curiae Immigrant Defense Project, National Immigration

Project of the National Lawyers Guild, Immigrant Legal

Resource Center, U.C. Davis Immigration Law Clinic, and

Immigration Justice Clinic of the Benjamin N. Cardozo

School of Law.

OPINION

W. FLETCHER, Circuit Judge:

Petitioner Manuel Olivas-Motta is a lawful permanent

resident charged with removal under 8 U.S.C.

§ 1227(a)(2)(A)(ii) based on his alleged “conviction of” two

crimes involving moral turpitude (“CIMTs”). Petitioner

concedes that the first conviction was for a CIMT. He

contends that the second was not.

The Immigration Judge (“IJ”) and Board of Immigration

Appeals (“BIA”) concluded that the second conviction was

for a CIMT, relying on police reports to determine the nature

of the conviction. The Attorney General held in Matter of

Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008), that an IJ

may rely on evidence outside the record of conviction to

4 OLIVAS-MOTTA V. HOLDER

determine whether a petitioner has been “convicted of” a

CIMT. We join the Third, Fourth, and Eleventh Circuits in

holding that Silva-Trevino was wrongly decided. We hold

that an IJ and the BIA are confined to the record of conviction

in determining whether an alien has been convicted of a

CIMT.

I. Background

Olivas-Motta was brought to the United States by his

parents when he was ten days old. At the time of his hearing

before the IJ he was thirty-three years old, married, and a

lawful permanent resident. He was charged with removal

under 8 U.S.C. § 1227(a)(2)(A)(ii), which provides that an

alien who has been “convicted of two or more crimes

involving moral turpitude . . . is deportable.”

In 2003, Olivas-Motta was convicted of facilitation of

unlawful possession of marijuana under Arizona law. Ariz.

Rev. Stat. §§ 13-1004, 13-3405. He concedes that this was a

conviction of a CIMT. In 2007, he pled guilty to

“endangerment” under Arizona law. Arizona’s endangerment

statute provides:

A. A person commits endangerment by

recklessly endangering another person

with a substantial risk of imminent death

or physical injury.

B. Endangerment involving a substantial risk

of imminent death is a class 6 felony. In

all other cases, it is a class 1

misdemeanor.

OLIVAS-MOTTA V. HOLDER 5

Ariz. Rev. Stat. § 13-1201. Olivas-Motta contends that his

conviction of endangerment was not a conviction of a CIMT.

At Olivas-Motta’s removal hearing before the IJ, the

government put into evidence the charging document and the

written plea agreement for his endangerment conviction.

Neither the charging document nor the plea agreement

provides information about Olivas-Motta’s underlying

conduct. The plea agreement states only that Olivas-Motta

“committed endangerment by recklessly endangering another

person with a substantial risk of imminent death,” and that he

was pleading guilty to a class 6 felony. The government also

put into evidence before the IJ three police reports containing

information about Olivas-Motta’s conduct. Relying on the

police reports pursuant to Matter of Silva-Trevino, 24 I. & N.

Dec. 687 (A.G. 2008), the IJ concluded that Olivas-Motta had

been “convicted of” a CIMT and was therefore removable.

She denied cancellation of removal.

The BIA dismissed Olivas-Motta’s appeal. It relied on

the police reports pursuant to Silva-Trevino to conclude that

Olivas-Mota had been convicted of a CIMT. Olivas-Motta

petitioned for review.

II. Jurisdiction and Standard of Review

We have jurisdiction to review questions of law in a

petition for review of a removal order. 8 U.S.C.

§ 1252(a)(2)(D). Latter-Singh v. Holder, 668 F.3d 1156,

1159 (9th Cir. 2012). Whether a conviction is for a CIMT is

a question of law. Id. We review questions of law de novo.

Romero-Mendoza v. Holder, 665 F.3d 1105, 1107 (9th Cir.

2011).

6 OLIVAS-MOTTA V. HOLDER

III. Discussion

We evaluate the Attorney General’s decision in Silva-

Trevino under the familiar framework of Chevron U.S.A. Inc.

v. Natural Res. Def. Council, 467 U.S. 837 (1984). When we

review an agency’s construction of a statute that it

administers, the first step under Chevron is to determine

“whether Congress has directly spoken to the precise question

at issue.” Id. at 842. “If the intent of Congress is clear, that

is the end of the matter . . . .” Id. In that event, courts and

agencies alike “must give effect to the unambiguously

expressed intent of Congress.” Id. at 842–43. If the intent of

Congress is unclear, we move to the next step, which is to

determine whether the agency’s interpretation of the text “is

based on a permissible construction of the statute.” Id. at

843. If the agency’s interpretation is based on a permissible

construction, a court must give deference to that

interpretation.

In Silva-Trevino, the Attorney General interpreted two

provisions of the Immigration and Naturalization Act

(“INA”), one dealing with inadmissibility and the other

dealing with removability. In both provisions, a criterion for

inadmissibility or removability is “conviction of” one or more

CIMTs. The admissibility provision states:

[A]ny alien convicted of, or who admits

having committed, or who admits committing

acts which constitute the essential elements of

. . . a crime involving moral turpitude . . . is

inadmissible.

8 U.S.C. § 1182(a)(2)(A)(i)(I) (emphasis added). The

removability provision states:

OLIVAS-MOTTA V. HOLDER 7

(i) Any alien who . . . is convicted of a crime

involving moral turpitude committed within

five years (or 10 years in the case of an alien

provided lawful permanent resident status

. . . ) after the date of admission, and is

convicted of a crime for which a sentence of

one year or longer may be imposed, is

deportable.

(ii) . . . Any alien who at any time after

admission is convicted of two or more crimes

involving moral turpitude . . . is deportable.

8 U.S.C. § 1227(a)(2)(A)(i–ii) (emphasis added).

The Attorney General concluded that the statutory

language is ambiguous. He wrote:

This opinion begins, as it must, with the

statutory text. The Act refers to “moral

turpitude” in two separate provisions [quoting

8 U.S.C. §§ 1182(a)(2)(A)(ii)(I) and

1127(a)(2)(A)(i)].

The statute does not define the term

“crime involving moral turpitude.” It is also

silent on the precise method that immigration

judges and courts should use to determine if a

prior conviction is for a crime involving

moral turpitude. To the extent it suggests a

method, the text actually cuts in different

directions. Some statutory language — for

example, use of the phrase “convicted of”

rather than “committed” — suggests that the

8 OLIVAS-MOTTA V. HOLDER

relevant inquiry should be categorical and

focus on whether moral turpitude inheres in

the statutory elements required for conviction

rather than in the particularized facts of the

alien’s crime. Section [1182](a)(2)(A)(i)(I).

Other language — for example, the use of the

word “involving” and the reference in section

[1182](a)(2)(A)(i)(I) to aliens who admit

“committing” certain “acts” — seems to call

for, or at least allow, inquiry into the

particularized facts of the crime.

Faced with this ambiguity, the Board and

the Federal courts have long taken the view

that judges should begin by engaging in some

sort of “categorical” inquiry to determine

whether moral turpitude “necessarily inheres”

in a conviction under a particular State or

Federal criminal statute. To date, however,

the Department has not adopted a preferred

methodology for conducting that categorical

inquiry, and the Board has chosen instead to

make such determinations in accordance with

the law of the circuit in which an alien’s case

arises.

Silva-Trevino, 24 I. & N. at 692–93 (emphasis added) (some

citations omitted).

Later in his opinion, the Attorney General wrote:

[T]he documents generally considered part

of the formal record of conviction typically

focus only on the charging elements of a

OLIVAS-MOTTA V. HOLDER 9

specific criminal offense. But moral turpitude

is not an element of an offense. And although

in many, if not most, cases (for example,

cases in which proof of fraudulent intent is

required for conviction), examination of the

alien’s record of conviction may establish that

the alien was in fact convicted of a crime

involving moral turpitude, there are other

cases (such as the instant one) in which an

examination of the formal record by itself

does not yield an answer to the question. To

limit the information available to immigration

judges in such cases means that they will be

unable to determine whether an alien’s crime

actually “involv[ed]” moral turpitude.

This restriction is hard to square with the

text of the Act. The relevant provisions

contemplate a finding that the particular alien

did or did not commit a crime involving moral

turpitude before immigration penalties are or

are not applied. Section [1182](a)(2)(A)(i)(I),

the inadmissibility provision at issue in this

case, refers to “any alien convicted of, or who

admits having committed, or who admits

committing acts which constitute the essential

elements of a crime involving moral

turpitude.” Section [1227’s] removability

provisions similarly pertain only to “[a]ny

alien who is convicted of a crime involving

moral turpitude” under certain enumerated

circumstances, one of which relates to the

alien’s date of admission — a fact that would

not typically be reflected in a criminal record

10 OLIVAS-MOTTA V. HOLDER

of conviction. To impose evidentiary

limitations with the result that immigration

penalties under section [1182](a) or section

[1227] apply to aliens whose crimes did not

involve moral turpitude, or with the result that

aliens whose crimes did involve moral

turpitude escape those penalties, is in tension

with the text of those sections.

Id. at 699–700 (first emphases added) (some citations

omitted).

Based on this analysis, the Attorney General concluded

that an IJ may consult evidence outside the record of

conviction in determining whether an alien has been

“convicted of” a CIMT. Silva-Trevino establishes a three-

step analysis. At the first step, applying Taylor v. United

States, 495 U.S. 575, 602 (1990), the IJ determines whether

the crime of conviction is categorically a CIMT. Silva-

Trevino, 24 I. & N. at 690. If the crime is not categorically a

CIMT, the IJ moves to the next step. At the second step,

applying both Taylor, 495 U.S. at 602, and Shepard v. United

States, 544 U.S. 13 (2005), the IJ determines under the

modified categorical approach whether the crime is a CIMT.

The IJ may consider the “record of conviction” including

“documents such as the indictment, the judgment of

conviction, jury instructions, a signed guilty plea and the plea

transcript.” Silva-Trevino, 24 I. & N. at 690. If the crime is

not a CIMT under the modified categorical approach, the IJ

moves to the final step. At this third step, the IJ may consider

evidence outside the record of conviction. In the words of

Silva-Trevino, “[w]hen the record of conviction is

inconclusive, judges may, to the extent they deem it

OLIVAS-MOTTA V. HOLDER 11

necessary and appropriate, consider evidence beyond the

formal record of conviction.” Id.

We disagree with the Attorney General. There are three

critical points in his analysis. The first and second are his

definitions of “crime involving moral turpitude” and

“convicted of.” The third is his conclusion that “moral

turpitude” is not an element of “an offense.” We take these

points in turn.

First, the Attorney General clarified the substantive

definition of the term “crime involving moral turpitude.” But

the Attorney General’s clarification is irrelevant to the

question whether evidence outside the record of conviction

can be used to determine whether an alien has been

“convicted of” a CIMT. The term CIMT is famously

ambiguous. See, e.g., Matter of Short, 20 I. & N. Dec. 136,

139 (BIA 1989) (referring to the term as a “nebulous

concept”). The Attorney General provided a distillation of

earlier decisions defining a CIMT:

[T]his opinion rearticulates the Department’s

definition of the term [CIMT] in a manner

that responds specifically to the judicial

criticism. . . . [T]his opinion makes clear that,

to qualify as a crime involving moral

turpitude for purposes of the Act, a crime

must involve both reprehensible conduct and

some degree of scienter, whether specific

intent, deliberateness, willfulness, or

12 OLIVAS-MOTTA V. HOLDER

recklessness. This definition rearticulates

with greater clarity the definition that the

Board (and many courts) have in fact long

applied.

Silva-Trevino, 24 I. & N. Dec. at 689 n.1. This distillation

clarified to some degree the substantive definition of a CIMT.

But the clarification of the substantive definition did nothing

to clarify the procedures that an IJ may use, or, in the

Attorney General’s words, to clarify “the precise method that

immigration judges and courts should use to determine if a

prior conviction is for a crime involving moral turpitude.” Id.

at 693.

To state the obvious, substance and procedure are not the

same thing. There is nothing in the substantive definition of

a CIMT, in either the BIA’s definitions or the Attorney

General’s distillation, that permits an IJ to use a different

procedure than it uses for other crimes in determining

whether an alien has been convicted of such a crime. We

agree with the Fourth Circuit, which addressed precisely this

point:

At issue . . . is not what conduct or

statutory offense qualifies as a crime

involving moral turpitude, but rather what

language in the moral turpitude statute

informs an adjudicator of the procedure for

determining whether a particular conviction

qualifies as a crime involving moral turpitude.

[The government] conflates these concepts

and relies on the asserted ambiguity inherent

in the phrase “crime involving moral

OLIVAS-MOTTA V. HOLDER 13

turpitude” to justify deference to the Attorney

General's three-step procedural framework.

These two concepts, however, require

distinct inquiries.

Prudencio v. Holder, 669 F.3d 472, 480 (4th Cir. 2012)

(emphasis added).

Second, the Attorney General provided a new, and

erroneous, definition of “convicted of” that allows an IJ not

only to consider the crimes of which an alien has been

convicted, but also to consider crimes he may have

committed but of which he was not convicted. In the second

long passage quoted above, the Attorney General allowed the

IJ to look outside the record of conviction for evidence of

CIMTs an alien may have committed as part of his

determination whether an alien has been “convicted of” a

CIMT. The Attorney General wrote, “The relevant

provisions contemplate a finding that the particular alien did

or did not commit a crime involving moral turpitude before

immigration penalties are or are not applied.” Silva-Trevino,

24 I. & N. Dec. at 699 (emphasis added). The Attorney

General cited § 1182(a)(2)(A)(i)(I) and § 1227, even though

§ 1227 does not refer to “commission” of crimes that

constitute CIMTs. Rather, § 1227 refers only to “conviction

of” CIMTs.

The Attorney General’s new definition conflicts with a

clear and long-established definition of “conviction.” The

INA provides, except in cases where an adjudication of guilt

has been withheld, that “‘conviction’ means, with respect to

an alien, a formal judgment of guilt of the alien . . . .”

8 U.S.C. § 1101(a)(48)(A). The INA specifies what

14 OLIVAS-MOTTA V. HOLDER

documents an adjudicator may consult as proof of a

conviction. See id. at § 1229a(c)(3)(B) (“[A]ny of the

following documents or records . . . shall constitute proof of

a criminal conviction: [specifying documents constituting the

record of conviction].”). Under this definition, an alien has

been “convicted of” only those acts that form the basis for the

conviction, as shown by the record of his conviction. An

alien has not been “convicted of” acts that he may have

committed but that do not form the basis for the conviction.

The Attorney General’s analysis in Silva-Trevino does

nothing to cast doubt on the validity of this well-established

definition. He wrote that the “use of the word ‘involving’ and

the reference in section [1182](a)(2)(A)(i)(I) to aliens who

admit ‘committing’ certain ‘acts’ . . . allow[s] inquiry into the

particularized facts of the crime.” Silva-Trevino, 24 I. & N.

Dec. at 693 (emphasis added). But he misunderstood the

plain meaning and context of the words he invoked. The

word “involving” is embedded in the substantive term “crime

involving moral turpitude,” and it gives meaning to that term.

It provides no help in defining the phrase “convicted of.” Nor

does the phrase “admits committing” provide help. The INA

provides that an alien who has been “convicted of, or who

admits having committed, or who admits committing acts

which constitute the essential elements of . . . a crime

involving moral turpitude” is inadmissible. 8 U.S.C.

§ 1182(a)(2)(A)(i)(I) (emphasis added). “Convicted of” and

“admits committing” are separate phrases with separate

meanings. Under 8 U.S.C. § 1182(a)(2)(A)(i)(I), an alien is

inadmissible if he has been convicted of a CIMT, or if he

admits to having committed acts that constitute a CIMT.

Under § 1227(a)(2)(A)(i–ii), an alien is deportable only if he

has been “convicted of” CIMTs.

OLIVAS-MOTTA V. HOLDER 15

In Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. 2004), we

explicitly rejected the argument that we may look to conduct

that an alien “committed” to determine the acts he has been

“convicted of.” We wrote:

Like all of the other removal provisions

we have analyzed in accordance with the

categorical and modified categorical

approach, the plain language of the “crime of

domestic violence” provision clearly bases

deportability on the nature of the alien’s

conviction, rather than on the alien’s actual

conduct. We are required to determine

whether Tokatly has been “convicted of a

crime of domestic violence” — not whether

he in fact committed such a crime. . . .

To adopt the government’s approach

would require us to look to “conduct” rather

than “conviction.” . . . [W]hen Congress

wants to make conduct the basis for removal

it does so specifically.

Id. at 622.

Third, the Attorney General concluded that “moral

turpitude” is not “an element of an offense.” Because in his

view moral turpitude is not an element of “an offense,” it is

not an element of the federal generic CIMT. Therefore, in the

Attorney General’s view, an IJ is not confined to the record

of conviction in determining whether an alien has been

convicted of a crime involving moral turpitude. Silva-

Trevino, 24 I. & N. Dec. at 699–700. The Attorney General

is mistaken in his conclusion that “moral turpitude” is not “an

16 OLIVAS-MOTTA V. HOLDER

element” of a CIMT. This may be seen from an analysis of

the Supreme Court’s decision in Nijhawan v. Holder,

129 S. Ct. 2294 (2009).

In determining the removability of Nijhawan under

8 U.S.C. § 1227(a)(2)(A)(iii), the IJ was required to

determine whether he had been convicted of an “aggravated

felony” under 8 U.S.C. § 1101(a)(43). Nijhawan, 129 S. Ct.

at 2297. The Court in Nijhawan divided generic felony

descriptions into two categories.

In the first category are descriptions of generic crimes that

are complete unto themselves. Id. at 2298. In the second

category are descriptions of generic crimes with an added

description of circumstances of the crimes. Id. Nijhawan had

been convicted of an aggravated felony consisting of an

offense involving fraud or deceit, with a specified loss

amount. The question before the Court was whether the

amount of loss was an element of the generic aggravated

felony, in which case the IJ could consider only evidence in

the record of conviction, or whether the amount of loss was

merely a circumstance of some generic felonies involving

“fraud or deceit,” in which case the IJ could consider

evidence outside the record of conviction to determine

whether that circumstance existed. Id. at 2298–99. The

Court gave examples in each group.

An example in the first category, taken from the Armed

Career Criminal Act, is a crime that “involves conduct that

presents a serious potential risk of physical injury to another.”

18 U.S.C. § 924(e)(2)(B)(ii) (emphasis added); Nijhawan,

129 S. Ct. at 2300. The Court wrote that this statutory

description “refers to crimes as generically defined.”

129 S. Ct. at 2300 (citing James v. United States, 550 U.S.

OLIVAS-MOTTA V. HOLDER 17

192, 202 (2007)). Other examples in the first group are some

of the aggravated felonies described in 8 U.S.C.

§ 1101(a)(43), including “murder, rape, or sexual abuse of a

minor,” § 1101(a)(43)(A), “illicit trafficking in a controlled

substance,” § 1101(a)(43)(B), and “illicit trafficking in

firearms or destructive devices,” § 1101(a)(43)(C). See

Nijhawan, 129 S. Ct. at 2300.

Examples in the second category include some of the

other aggravated felonies described in § 1101(a)(43). One

example is “‘falsely making, forging, counterfeiting,

mutilating, or altering a passport,’ . . . ‘except in the case of

a first offense for which the alien . . . committed the offense

for the purpose of assisting . . . the alien’s spouse, child or

parent . . . to violate a provision of this chapter.’” Id.

(quoting 8 U.S.C. § 1101(a)(43)(P)) (emphasis by the Court)

(first omission added). Another example is “‘offense[s] . . .

described in section 2421, 2422, or 2423 of title 18 (relating

to transportation for the purpose of prostitution) if committed

for commercial advantage.’” Id. at 2301 (quoting 8 U.S.C.

§ 1101(a)(43)(K)(ii)) (emphasis and omission by the Court).

A third example is “an offense ‘described in section 7201 of

title 26 (related to tax evasion) in which the revenue loss to

the Government exceeds $10,000.’” Id. at 2301 (quoting

8 U.S.C. § 1101(a)(43)(M)(ii)) (emphasis by the Court).

According to the Court, the non-italicized language in these

three examples describes generic crimes, and the italicized

language describes circumstances rather than elements of the

crimes. Id. at 2301–02.

The crime at issue in Nijhawan was “an offense that . . .

involves fraud or deceit in which the loss to the victim or

victims exceeds $10,000.” Id. (quoting 8 U.S.C.

§ 1101(a)(43)(M)(i)) (emphasis added) (omission by the

18 OLIVAS-MOTTA V. HOLDER

Court). The Court concluded that the generic felony was an

offense that involves fraud or deceit, and that the elements of

the generic crime were contained in that description. Id. The

amount of loss was a circumstance rather than an element of

the crime. Because the loss amount was a circumstance

rather than an element, the IJ could consider evidence outside

the record of conviction to determine whether that

circumstance existed. Id. at 2301–03.

This understanding of Nijhawan was confirmed in

Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010). In

considering whether Carachuri-Rosendo was eligible for

cancellation of removal, the IJ had to decide whether the

state-law crime of which he had been convicted was the

aggravated felony of “illicit trafficking” under

§ 1101(a)(43)(B). Id. at 2580–81. The Court held that

uncharged conduct could not be considered in determining

whether Carachuri-Rosendo had been convicted of “illicit

trafficking.” Id. at 2589. In rejecting the government’s

argument that the IJ could look at uncharged conduct, the

Court wrote:

[M]ost fundamentally, the Government’s

position ignores the text of the INA, which

limits the Attorney General’s cancellation

power only when, inter alia, a noncitizen “has

. . . been convicted of a[n] aggravated felony.”

The text thus indicates that we are to look to

the conviction itself as our starting place, not

to what might have been or could have been

charged.

Id. at 2586 (alteration and emphasis in original). The Court

distinguished the crime in Nijhawan, noting that Nijhawan

OLIVAS-MOTTA V. HOLDER 19

had been convicted of a generic felony “involv[ing] fraud or

deceit,” and that the loss amount was not an element of the

crime. It wrote:

[U]nlike the instant case, there was no debate

in Nijhawan over whether the petitioner

actually had been “convicted” of fraud; we

only considered how to calculate the amount

of loss once a conviction for a particular

category of aggravated felony has occurred.

Id. at 2586–87 n.11.

Applying the analysis of Nijhawan to the question before

us, the question is whether the term “crime involving moral

turpitude” contains only a description of the elements of the

generic crime, or whether the words “involving moral

turpitude” in that term describe a circumstance of the crime.

If the former, an IJ is confined to the record of conviction to

determine whether an alien has been convicted of the crime.

If the latter, an IJ may go beyond the record of conviction to

determine if that circumstance existed.

An application of Nijhawan to CIMTs begins with a

recognition that a CIMT is a generic crime rather than a

particular crime that has been charged in an individual case.

So far as we are aware, no state has a particular crime called

“crime involving moral turpitude.” The Attorney General is

therefore correct in observing that moral turpitude is not “an

element of an offense” if, by “offense” the Attorney General

means a particular crime rather than the categorical offense

of CIMT. Silva-Trevino, 24 I. & N. Dec. at 699 (emphasis

added). However, the Attorney General’s observation is

irrelevant to an analysis of a generic crime such as a CIMT.

20 OLIVAS-MOTTA V. HOLDER

With respect to the generic crime of “crime involving moral

turpitude,” moral turpitude is an element of that crime. For

two reasons, Nijhawan compels that conclusion.

First, contrary to the suggestion of the Attorney General,

use of the word “involving” in the description of a CIMT is

entirely consistent with “moral turpitude” being an element

of the generic crime of CIMT. See Silva-Trevino, 24 I. & N.

Dec. at 693 (“Other language — for example, use of the word

‘involving’ . . . — seems to call for, or at least allow, inquiry

into the particularized facts of the crime.”). The Court in

Nijhawan gave, as one example of a generic crime whose

description contained an element of that crime, a crime

punishable by imprisonment of more than a year that

“involves conduct that presents a serious potential risk of

physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii)

(emphasis added); see also Nijhawan, 129 S. Ct. at 2300

(citing James v. United States, 550 U.S. 192, 202 (2007)).

Further, as to the crime actually at issue in Nijhawan, the

Court held that the underlying generic crime was “an offense

that . . . involves fraud or deceit,” and that “fraud or deceit”

were elements of the offense. Nijhawan, 129 S. Ct. at 2301

(quoting 8 U.S.C. § 1101(a)(43)(M)(ii)) (emphasis added).

Second, there is no separately described generic crime for

which “involving moral turpitude” is a circumstance. In each

of the examples in Nijhawan in which there was a

circumstance that could be proved by evidence outside the

record of conviction, there was a separately defined crime to

which a description of the circumstance had been added.

Those crimes were “falsely making, forging, counterfeiting,

mutilating, or altering a passport”; “offense[s] . . . described

in section 2421, 2422, or 2423 of title 18 (relating to

transportation for the purpose of prostitution)”; and an

OLIVAS-MOTTA V. HOLDER 21

“offense ‘described in section 7201 of title 26 (related to tax

evasion).’” Id. at 2301–02. In striking contrast, there is no

separately described crime to which “involving moral

turpitude” is added as a circumstance. If one eliminates the

phrase “involving moral turpitude” from the phrase “crime

involving moral turpitude,” there is no separately defined

crime. There is only the single word “crime,” covering the

entire universe of crime. The words “involving moral

turpitude” are thus integral to the description of the generic

crime of CIMT and constitute an element of that generic

crime.

Three of our sister circuits agree that Silva-Trevino was

wrongly decided. In Jean-Louis v. Attorney Gen., 582 F.3d

462 (3d Cir. 2009), the Third Circuit rejected the argument

that the word “involving” in the phrase “crime involving

moral turpitude” permits consideration of evidence beyond

the record of conviction. The court concluded that the entire

phrase “crime involving moral turpitude” is a “term of art”

describing a generic crime. 582 F.3d at 477. Relying in part

on our decision in Tokatly, the Third Circuit also rejected the

Attorney General’s argument that the use of “convicted of”

and “committed” in § 1182(a)(2)(A)(i)(I), the inadmissibility

provision, makes the statute ambiguous. It wrote:

It could not be clearer from the text of the

statute — which defines “conviction” as a

“formal judgment of guilt,” and which

explicitly limits the inquiry to the record of

conviction or comparable judicial record

evidence — that the CIMT determination

focuses on the crime of which the alien was

convicted — not the specific acts that the

alien may have committed.

22 OLIVAS-MOTTA V. HOLDER

Id. at 474 (footnote omitted). The court concluded:

The ambiguity that the Attorney General

perceives in the INA is an ambiguity of his

own making, not grounded in the text of the

statute, and certainly not grounded in the

BIA’s own rulings or the jurisprudence of

courts of appeals going back for over a

century.

Id. at 473.

Two other circuits have agreed with the Third Circuit’s

decision in Jean-Louis. In Prudencio v. Holder, 669 F.3d at

482, the Fourth Circuit wrote:

[W]e conclude that the plain language of the

moral turpitude statute is not ambiguous.

Because the relevant statutory language refers

only to convictions, not to conduct or to

“committing” acts, there is no uncertainty in

the statutory language created by the use of

the phrase “convicted of” in the same statute

as the words “committing” and “involving.”

Thus, in a case such as the present one in

which the only issue is the alien’s prior

conviction, the statute unambiguously directs

that an adjudicator consider only the

conviction itself, and not any underlying

conduct.

In Fajardo v. U.S. Atty. Gen., 659 F.3d 1303, 1309 (11th Cir.

2011), the Eleventh Circuit agreed that the phrase “convicted

of” is unambiguous and explicitly agreed with the Third

OLIVAS-MOTTA V. HOLDER 23

Circuit that the phrase “crime involving moral turpitude” is

a “term of art” describing a generic crime. Id. at 1309–10.

We are aware that two circuits disagree. The Seventh and

Eighth Circuits both permit the IJ to consider evidence

outside the record of conviction to determine whether an alien

has been convicted of a CIMT. In Ali v. Mukasey, 521 F.3d

737, 741 (7th Cir. 2008), the Seventh Circuit wrote that, with

respect to “crimes involving moral turpitude,” there are two

questions a court must answer: first, “the fact of the prior

conviction,” for which the IJ cannot go outside the record of

conviction, and second, “the appropriate classification of that

conviction, which may require additional information.” Id.

Though it did not state the matter in precisely these terms, we

understand the court in Ali to have concluded that moral

turpitude is not an element of the generic offense of a CIMT

that can be proved only by evidence in the record of

conviction, but rather a descriptive circumstance added to the

separately defined particular crime of which the petitioner has

actually been convicted. In Bobadilla v. Holder, 679 F.3d

1052, 1055 (8th Cir. 2012), the Eighth Circuit wrote that

“[b]ecause ‘moral turpitude’ is not an element of any criminal

offense,” the IJ can look beyond the fact of conviction to the

circumstances of the crime to determine whether moral

turpitude was involved. For the reasons given above, we

disagree with these courts’ conclusion that “moral turpitude”

is not an element of a CIMT.

We agree with the Third, Fourth, and Eleventh Circuits

that the relevant provisions of the INA are not ambiguous and

that we do not owe Chevron deference to the Attorney

General’s opinion in Silva-Trevino. A “crime involving

moral turpitude” is a generic crime whose description is

complete unto itself, such that “involving moral turpitude” is

24 OLIVAS-MOTTA V. HOLDER

an element of the crime. Because it is an element of the

generic crime, an IJ is limited to the record of conviction in

determining whether an alien has been “convicted of” a

CIMT. We conclude that Silva-Trevino was wrongly

decided, and that the IJ and the BIA improperly considered

evidence beyond the record of conviction in holding that

Olivas-Motta was “convicted of” a “crime involving moral

turpitude.”

IV. Postscript

Two years after it decided Olivas-Motta’s appeal, the BIA

concluded that reckless endangerment “with a substantial risk

of imminent death” in violation of Arizona law is

categorically a CIMT. See In re Leal, 26 I. & N. Dec. 20, 27

(BIA 2012). The government has filed a post-argument brief

in this court based on In re Leal. It does not request a remand

to the BIA to allow it to apply In re Leal. Rather, it requests

only that we deny Olivas-Motta’s petition on the current

record.

We decide a petition for review based on the grounds

relied upon by the BIA. Ali v. Holder, 637 F.3d 1025, 1029

(9th Cir. 2011). The BIA did not decide Olivas-Motta’s

appeal based on a conclusion that the Arizona endangerment

statute is categorically a CIMT. Indeed, the BIA held

specifically in Olivas-Motta’s appeal that the Arizona

endangerment statute is not categorically a CIMT. We

therefore cannot deny Olivas-Motta’s petition on the ground

that it is. We intimate no view as to correctness of In re Leal.

We hold only that we cannot deny Olivas-Motta’s petition

based on a conclusion reached by the BIA in a separate case

decided two years after it decided the appeal now before us.

OLIVAS-MOTTA V. HOLDER 25

Conclusion

For the foregoing reasons, we grant the petition and

remand for proceedings consistent with this opinion.

Petition GRANTED and REMANDED.

KLEINFELD, Senior Circuit Judge, concurring:

I concur in the result. I respectfully disagree, though,

with the majority’s wholesale rejection of deference to the

Attorney General’s opinion. We owe deference to the agency

charged with construing the statute. The Attorney General’s

opinion, reasonably construed, is not arbitrary or capricious.

We need not decide in this case whether to accept or reject

the opinion, because it was misapplied.

The statute at issue in this case says that an admitted

alien shall be removed if the alien has been “convicted of two

or more crimes involving moral turpitude.”1 We held in

Marmolejo-Campos v. Holder2 that “moral turpitude” was

“perhaps the quintessential example of an ambiguous

phrase,”3 and that Chevron and Skidmore deference applied

to BIA determinations “once the elements of the petitioner’s

offense are established” to determine whether the particular

1

8 U.S.C. § 1227(a)(2)(A)(ii).

2

Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. 2009) (en banc).

3

Id. at 909.

26 OLIVAS-MOTTA V. HOLDER

crime was one of moral turpitude.4 We withheld judgment on

the third step in the Attorney General’s Silva-Trevino5

opinion, that Immigration Judges may look beyond the

evidence cognizable under Shepard v. United States,6 because

the question was not squarely before us.7

The briefing in this case focuses on what we left

unanswered in Marmolejo-Campos, the permissibility of

going beyond Shepard-cognizable evidence. The petitioner

argues that reliance on the police report was mistaken

because Silva-Trevino is an impermissible interpretation of

the statute, while the government argues that it was

appropriate because Silva-Trevino was within the interpretive

authority of the Attorney General for a statute that the

Department of Justice administers.

We should decline both parties’ invitations to rule so

much more broadly than this case requires. Silva-Trevino

tells Immigration Judges to look beyond Shepard-cognizable

documents, but says nothing about police reports. It tells

Immigration Judges that they may look at other evidence “to

the extent they deem it necessary and appropriate,” without

saying when that might or might not be so.8 This “necessary

and [or] appropriate” phrase is considerably narrower than the

4

Id. at 911.

5

In re Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008).

6

Shepard v. United States, 544 U.S. 13 (2005).

7

Marmolejo-Campos, 558 F.3d at 907 n.6.

8

In re Silva-Trevino, 24 I. & N. Dec. at 690.

OLIVAS-MOTTA V. HOLDER 27

word “any” might be, because it requires necessity and

appropriateness.

Congress commands that in removal proceedings,

deportability must be proved “by clear and convincing

evidence,” and the deportability decision must be based on

“reasonable, substantial, and probative evidence.”9 If we

were to read Silva-Trevino to authorize Immigration Judges

to rely upon evidence that was not “reasonable, substantial,

and probative,” then Silva-Trevino would have to be rejected

as arbitrary and capricious.10 To be admissible under the

statute, “necessary” and “appropriate” evidence in the Silva-

Trevino phrasing also has to be “reasonable, substantial, and

probative.” The Attorney General’s opinion in Silva-Trevino

must be, and doubtless was intended to be, limited by the

statutory “reasonable, substantial, and probative”

requirement.

We need decide only whether police reports are

“reasonable, substantial, and probative evidence” that can

prove by “clear and convincing evidence” that Olivas-Motta

committed a crime involving moral turpitude.11 We need not

decide more generally whether Silva-Trevino merits Chevron

deference.

It has long been clear that police reports are not generally

“reasonable, substantial, and probative evidence” of what

9

8 U.S.C. § 1229a(c)(3)(A).

10

5 U.S.C. § 706(2)(A); see Motor Vehicle Mfrs. Ass’n of the U.S., Inc.

v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).

11

8 U.S.C. § 1229a(c)(3)(A).

28 OLIVAS-MOTTA V. HOLDER

someone did. Despite their liberality toward public and

business records, the Federal Rules of Evidence expressly

make an exception, excluding police reports as evidence in

criminal cases.12 In Shepard v. United States,13 the

government had argued that when applying the modified

categorical approach, police reports ought to be considered in

the limited context where they had been submitted to a local

court to obtain a criminal complaint.14 The Supreme Court

characterized the government’s argument as a “menace to

Taylor,”15 far too expansive.16 And that would not be as

expansive as what the government seeks here, use of police

reports where the record does not show that any court ever

relied on them to issue a complaint.

A police report is a device useful for many purposes, such

as recording a contemporaneous recollection of what the

officers observed and what they understood people to have

told them. A police report usefully guides further

investigation. The report helps prosecutors and defense

lawyers locate useful witnesses. But police reports are not

especially useful instruments for finding out what persons

charged actually did. All the defects of hearsay, double

hearsay, and triple hearsay apply, since people may speak to

12

Fed. R. Evid. 803(8)(A)(ii).

13

Shepard v. United States, 544 U.S. 13 (2005).

14

Id. at 21.

15

Taylor v. United States, 495 U.S. 575 (1995).

16

Shepard, 544 U.S. at 22; see also In re Milian-Dubon, 25 I. & N. Dec.

197, 197 (2010) (explaining that “a police report, standing alone, is not

part of the record of conviction”).

OLIVAS-MOTTA V. HOLDER 29

the police despite lack of personal knowledge and lack of

adequate observation, may be misunderstood, and what they

say may be misreported.17 People sometimes lie or

exaggerate when they talk to the police.

If Silva-Trevino said (which it does not) that Immigration

Judges should rest their decisions on what police reports say,

we would properly hold that Silva-Trevino was a mistaken

interpretation of the statute requiring “reasonable, substantial,

and probative” evidence.18 Since police reports are not

“reasonable, substantial, and probative” they are not

“appropriate” under Silva-Trevino. Even if the statutory

standard were more liberal, the BIA needs “clear and

convincing” evidence for removal, and something as

potentially inaccurate as a police report cannot be “clear and

convincing” evidence.19 We need not reach whether Silva-

Trevino merits Chevron deference, because Silva-Trevino

does not say or imply that the Immigration Judge and the BIA

may rely on police reports to determine whether a crime was

one of moral turpitude. The BIA’s reliance on the police

report in this case was mistaken. I would remand for that

reason, and would not address whether Silva-Trevino merits

Chevron deference.

17

See Prudencio v. Holder, 669 F.3d 472, 483–84 (4th Cir. 2012)

(“[P]olice reports . . . often contain little more than unsworn witness

statements and initial impressions . . . . Further, because the[y] are

generated early in an investigation, they do not account for later events,

such as witness recantations, amendments, or corrections.”).

18

8 U.S.C. § 1229a(c)(3)(A).

19

Id.

30 OLIVAS-MOTTA V. HOLDER

Nothing since Marmolejo-Campos came down in 2009

has changed the fact that “moral turpitude” is “perhaps the

quintessential example of an ambiguous phrase.”20 The

majority concedes that the term is “famously ambiguous.” At

one time, the phrase was more understandable, and seemed to

refer to crimes involving sex or fraud, but no longer. Given

the inherent ambiguity in the statute, the Attorney General

was justified in laying out a uniform standard for Immigration

Judges to apply when determining whether an alien was

convicted of a crime involving moral turpitude.

The majority places more weight on the phrase “convicted

of” than it can bear. The phrase could mean, as the majority

asserts, that we may not look to conduct that an alien

committed. Though we so held in Tokatly v. Ashcroft,21 the

ambiguity of the phrase supports a need for deference to the

subsequent interpretation by the administrative agency.

Tokatly did not deal with a situation where the Attorney

General has issued a decision directly on point. There was no

such contrary agency view to which we could defer. When

Tokatly was decided, we were in agreement with the BIA’s

position when we expressed our fear of “mini-trials.”22 The

agency’s position has changed. The Attorney General has

determined that looking beyond the record of conviction is

not an unmanageable burden. We emphasized in Tokatly that

20

Marmolejo-Campos, 558 F.3d at 909.

21

Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. 2004).

22

Id. at 621.

OLIVAS-MOTTA V. HOLDER 31

our position was the same as the BIA’s.23 And Nijhawan v.

Holder24 forecloses any argument that the phrase “convicted

of” in a removal statute always limits the inquiry to the

modified categorical approach. The Supreme Court held in

Nijhawan that when determining whether an alien has been

“convicted of an aggravated felony” for purposes of 8 U.S.C.

§ 1227(a)(2)(A)(iii), “the ‘fraud and deceit’ provision before

us calls for a ‘circumstance-specific,’ not a ‘categorical,’

interpretation.”25 The Court rejected the petitioner’s call for

a modified categorical approach, because it did “not agree

that fairness requires the evidentiary limitations he

propose[d].”26 The Court feared that the modified categorical

approach might “prove impractical insofar as it requires

obtaining from a jury a special verdict on a fact that . . . is not

an element of the offense.”27

No statutory list of “crimes involving moral turpitude”

exists. The Attorney General has propounded a workable

definition. The Attorney General has apparently concluded

that, just as some felonies are “aggravated” because of the

circumstances under which they are committed, some crimes

23

Id. at 623 (“Indeed the IJ’s examination of the victim provides an

example of the very fact-finding process that both the courts and the

Board have deemed inappropriate and sought to avoid by strict adherence

to the categorical and modified categorical methodology.”); id. (“We

decline to modify this court’s – and the Board’s – strict rules against

extra-record of conviction evidence . . . .”).

24

Nijhawan v. Holder, 557 U.S. 29 (2009).

25

Id. at 32, 36.

26

Id. at 41.

27

Id. at 42.

32 OLIVAS-MOTTA V. HOLDER

“involve moral turpitude” because of the circumstances under

which they are committed. This conclusion does not conflict

with Nijhawan.

Because the statute is ambiguous and the Attorney

General’s construction is reasonable, I would join the Seventh

and Eighth Circuits in holding that we should defer to Silva-

Trevino.28 This would not give Immigration Judges

unfettered discretion. They are still limited by statute to

“reasonable, substantial, and probative” evidence,29 and the

BIA still needs “clear and convincing” evidence for

removal.30

28

See Bobadilla v. Holder, 679 F.3d 1052 (8th Cir. 2012); Mata-

Guerrero v. Holder, 627 F.3d 256 (7th Cir. 2010).

29

8 U.S.C. § 1229a(c)(3)(A).

30

Id.