SILVA-TREVINO

Cite as 26 I&N Dec. 550 (A.G. 2015) Interim Decision #3833

Matter of Cristoval SILVA-TREVINO, Respondent

Decided by Attorney General April 10, 2015

U.S. Department of Justice

Office of the Attorney General

The Attorney General vacated the opinion in Matter of Silva-Trevino, 24 I&N Dec. 687

(A.G. 2008).

BEFORE THE ATTORNEY GENERAL

On November 7, 2008, Attorney General Mukasey issued an opinion in

this matter vacating the August 8, 2006, decision of the Board of

Immigration Appeals and remanding respondent’s case for further

proceedings in accordance with his opinion. See Matter of Silva-Trevino,

24 I&N Dec. 687 (A.G. 2008). On remand, the Immigration Judge,

applying Attorney General Mukasey’s opinion, issued a new decision

finding respondent ineligible for discretionary relief from deportation. The

Board affirmed that decision. The respondent then filed a petition for

review with the United States Court of Appeals for the Fifth Circuit. On

January 30, 2014, the Fifth Circuit rejected Attorney General Mukasey’s

opinion as contrary to the plain language of the statute, vacated the Board’s

decision, and remanded this matter to the Board for further proceedings

consistent with the court’s opinion. See Silva-Trevino v. Holder, 742 F.3d

197, 200−06 (5th Cir. 2014). For the reasons stated herein, I have

determined that it is appropriate to vacate Attorney General Mukasey’s

November 7, 2008, opinion in this matter.

The central issue raised by this case is how to determine whether an

alien has been “convicted of . . . a crime involving moral turpitude” within

the meaning of section 212(a)(2) of the Immigration and Nationality Act,

8 U.S.C. § 1182(a)(2) (2012). The Board initially addressed this issue in its

August 8, 2006, decision in this case, determining that respondent’s

conviction for the criminal offense of “indecency with a child” should not

be considered a crime of moral turpitude because the Texas statute under

which he had been convicted criminalized at least some conduct that did

not involve moral turpitude and was thus not categorically a crime

involving moral turpitude. Matter of Silva-Trevino, 24 I&N Dec. at

690−92. After that decision had issued, Attorney General Gonzales

directed the Board to refer the case to him for further review. See

Att’y Gen. Order No. 2889-2007 (July 10, 2007); see also 8 C.F.R.

550

Cite as 26 I&N Dec. 550 (A.G. 2015) Interim Decision #3833

§ 1003.1(h)(1)(i) (2007) (providing that the Attorney General may direct

the Board to refer cases to him “for review of [the Board’s] decision”).

After review, Attorney General Gonzales’s successor, Attorney General

Mukasey, issued an opinion vacating the Board’s August 8, 2006, decision

and establishing a new three-step framework to be used by Immigration

Judges and the Board in determining whether an alien had been convicted

of a crime involving moral turpitude. Att’y Gen. Order No. 3016-2008

(Nov. 7, 2008); Matter of Silva-Trevino, 24 I&N Dec. at 687−90 & n.1,

704; cf. section 103(a)(1) of the Act, 8 U.S.C. § 1103(a)(1) (2012) (a

“determination and ruling by the Attorney General with respect to all

questions of law shall be controlling”).

In the first step of the framework, Attorney General Mukasey directed

Immigration Judges and the Board to “engage in a ‘categorical inquiry’” in

order to determine “whether moral turpitude necessarily inheres in all cases

that have a realistic probability of being prosecuted” under a particular

criminal provision. Matter of Silva-Trevino, 24 I&N Dec. at 696−97

(relying on Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193

(2007)). Where this categorical analysis did not resolve the moral turpitude

inquiry, the Attorney General instructed adjudicators to proceed to the

second step, a “modified categorical” inquiry “pursuant to which

adjudicators consider whether the alien’s record of conviction evidences a

crime that in fact involved moral turpitude.” Id. at 698. Recognizing that

“[m]ost courts . . . have limited this second-stage inquiry to the alien’s

record of conviction,” the Attorney General concluded that a third step was

necessary because “when the record of conviction fails to show whether the

alien was convicted of a crime involving moral turpitude, immigration

judges should be permitted to consider evidence beyond that record if doing

so is necessary and appropriate to ensure proper application of the Act’s

moral turpitude provisions.” Id. at 699. Accordingly, Attorney General

Mukasey’s opinion directed Immigration Judges and the Board to consider,

at the third step in the moral turpitude inquiry, “any additional evidence the

adjudicator determines is necessary or appropriate to resolve accurately the

moral turpitude question” when “the record of conviction does not resolve

the inquiry.” Id. at 704. The Attorney General then remanded the case to

the Board to “reconsider, consistent with [his] opinion, whether the crime

respondent committed involved moral turpitude.” Id. at 709.

On remand, the Board sent the case back to the Immigration Judge

who—applying the third step in Attorney General Mukasey’s framework—

considered evidence outside of the record of conviction to conclude that

respondent’s conviction had involved moral turpitude because respondent

should have known that the victim of his crime was a minor. Silva-Trevino,

742 F.3d at 198−99. As a result, the Immigration Judge found respondent

551

Cite as 26 I&N Dec. 550 (A.G. 2015) Interim Decision #3833

was inadmissible and thus ineligible for discretionary relief from

deportation under section 212(a)(2) of the Act. Id. On review, the Board

affirmed. Id.

In January of last year, on respondent’s petition for review, the Fifth

Circuit held that “convicted of” as used in section 212(a)(2) did not permit

Immigration Judges to inquire into relevant evidence outside of the record

of conviction in order to classify a particular conviction as one involving

moral turpitude. Id. at 200−01. In so doing, the court rejected the third

step of Attorney General Mukasey’s framework as contrary to the

unambiguous language of the statute and thus refused to accord the

Silva-Trevino opinion deference. See id. at 203 (“Where, as here, Congress

has spoken directly to the statutory question at hand, our precedent need not

yield to an agency’s contrary interpretation.”).

As the Fifth Circuit recognized, in so ruling it became the fifth circuit

court of appeals to reject Attorney General Mukasey’s construction of the

statute. Id. at 200 & n.1.1 These courts have all agreed that the phrase

“convicted of” as used in the Act forecloses any inquiry into evidence

outside of the record of conviction. Id. Two other circuits have accorded

deference to Attorney General Mukasey’s construction of the statute as

reasonable and permitted such an extrinsic inquiry.2 As a result, Attorney

General Mukasey’s opinion in this matter has not accomplished its stated

goal of “establish[ing] a uniform framework for ensuring that the Act’s

moral turpitude provisions are fairly and accurately applied.” Matter of

Silva-Trevino, 24 I&N Dec. at 688. Instead, the circuits are split, and the

variance between Attorney General Mukasey’s binding opinion and the

contrary controlling precedent in some circuits forces Immigration Judges

and the Board to apply different standards in different jurisdictions. See

Silva-Trevino, 742 F.3d at 205.

In addition, in the time since Attorney General Mukasey released his

opinion, the Supreme Court has issued several decisions that may bear on

administrative determinations of whether an alien has been convicted of a

crime involving moral turpitude. In Carachuri-Rosendo v. Holder, the

Court held that adjudicators could not consider uncharged conduct to

determine whether an alien had been “convicted of” illicit trafficking, an

aggravated felony under the Act. 560 U.S. 563, 581−82 (2010). Applying

1

See Olivas-Motta v. Holder, 746 F.3d 907, 911−16 (9th Cir. 2013) (amended opinion);

Prudencio v. Holder, 669 F.3d 472, 480−84 (4th Cir. 2012); Fajardo v. U.S. Att’y Gen.,

659 F.3d 1303, 1307−11 (11th Cir. 2011); Jean-Louis v. Att’y Gen. of U.S., 582 F.3d 462,

472−82 (3d Cir. 2009).

2

Bobadilla v. Holder, 679 F.3d 1052, 1057 (8th Cir. 2012); Mata-Guerrero v. Holder,

627 F.3d 256, 260 (7th Cir. 2010).

552

Cite as 26 I&N Dec. 550 (A.G. 2015) Interim Decision #3833

Carachuri-Rosendo 3 years later, the Court in Moncrieffe v. Holder

reaffirmed that the phrase “convicted of” required a categorical approach,

and it rejected the Government’s argument that adjudicators could engage

in a “circumstance-specific” analysis of a particular drug conviction to

determine if the quantity of drugs involved made it an aggravated felony.

133 S. Ct. 1678, 1690−92 (2013); see also Kawashima v. Holder, 132 S. Ct.

1166, 1172 (2012) (applying the categorical approach to determine if an

alien had been convicted of an offense involving fraud or deceit). These

decisions cast doubt on the continued validity of the third step of the

framework set out by Attorney General Mukasey’s opinion, which directs

Immigration Judges and the Board to go beyond the categorical and

modified categorical approaches and inquire into facts outside of the formal

record of conviction in order to determine whether a particular conviction

involves moral turpitude.

In view of the decisions of five courts of appeals rejecting the

framework set out in Attorney General Mukasey’s opinion—which have

created disagreement among the circuits and disuniformity in the Board’s

application of immigration law—as well as intervening Supreme Court

decisions that cast doubt on the continued validity of the opinion,

I conclude that it is appropriate to vacate the November 7, 2008, opinion in

its entirety.3 My decision to do so does not mean that I disapprove of every

aspect of that opinion. But because the Board is obliged to follow decisions

of the Attorney General except to the extent of a contrary directive from a

reviewing court, see, e.g., Matter of Abdelghany, 26 I&N Dec. 254, 265

(BIA 2014), only a complete vacatur will enable the Board to develop

a uniform standard for the proper construction and application

of section 212(a)(2) of the Act and similar provisions in light of all relevant

precedents and arguments.

In light of this vacatur, the Board may address, in this case and other

cases as appropriate, the following issues:

1. How adjudicators are to determine whether a particular criminal

offense is a crime involving moral turpitude under the Act;

3

Nothing in this order is intended to affect Board determinations that an offense entails

or does not entail “reprehensible conduct and some form of scienter” and is or is not a

crime involving moral turpitude for that reason. Matter of Silva-Trevino, 24 I&N Dec. at

706 n.5. In addition to Silva-Trevino, that standard has been applied in the following

Board precedents: Matter of Ortega-Lopez, 26 I&N Dec. 99 (BIA 2013); Matter of Leal,

26 I&N Dec. 20 (BIA 2012); Matter of Ruiz-Lopez, 25 I&N Dec. 551 (BIA 2011); Matter

of Guevera-Alfaro, 25 I&N Dec. 417 (BIA 2011); and Matter of Louissaint, 24 I&N Dec.

754. As an interim matter, those determinations, as well as determinations in

nonprecedential decisions applying the standard, shall remain valid. I leave to the Board

whether to retain, modify, or clarify them in any respect.

553

Cite as 26 I&N Dec. 550 (A.G. 2015) Interim Decision #3833

2. When, and to what extent, adjudicators may use a modified

categorical approach and consider a record of conviction in determining

whether an alien has been “convicted of . . . a crime involving moral

turpitude” in applying section 212(a)(2) of the Act and similar provisions;

3. Whether an alien who seeks a favorable exercise of discretion under

the Act 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. See Matter of Jean, 23 I&N Dec. 373 (A.G. 2002) (addressing

the exercise of discretion in view of alien’s criminal acts).

The Board should solicit and consider briefs from the parties and

interested amici as it deems appropriate to ensure that its conclusions on

these issues are reached after full and fair consideration of all relevant

arguments.

The November 7, 2008, opinion, Matter of Silva-Trevino, 24 I&N Dec.

687 (A.G. 2008), is vacated in its entirety.

554