Ricardo Prudencio v. Eric Holder, Jr.

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RICARDO A. PRUDENCIO, 

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney

General,

Respondent.

IMMIGRANT DEFENSE PROJECT;  No. 10-2382

NATIONAL IMMIGRATION

PROJECT OF THE NATIONAL LAWYERS

GUILD; IMMIGRANT LEGAL RESOURCE

CENTER; KATHRYN O. GREENBERG

IMMIGRATION JUSTICE CLINIC OF THE

BENJAMIN N. CARDOZO SCHOOL OF

LAW,

Amici Supporting Petitioner.



On Petition for Review of an

Order of the Board of Immigration Appeals.

Argued: September 21, 2011

Decided: January 30, 2012

Before TRAXLER, Chief Judge, and SHEDD and

KEENAN, Circuit Judges.

2 PRUDENCIO v. HOLDER

Petition granted; vacated and final judgment by published

opinion. Judge Keenan wrote the opinion, in which Chief

Judge Traxler joined. Judge Shedd wrote a dissenting opinion.

COUNSEL

ARGUED: Hilario Mercado, Jr., MERCADO LAW FIRM,

PLC, Falls Church, Virginia, for Petitioner. Jesse Matthew

Bless, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Respondent. ON BRIEF: Tony West,

Assistant Attorney General, Civil Division, Jennifer Paisner-

Williams, Senior Litigation Counsel, Office of Immigration

Litigation, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Respondent. Peter L. Markowitz, BEN-

JAMIN N. CARDOZO SCHOOL OF LAW, New York, New

York, for Amici Supporting Petitioner.

OPINION

BARBARA MILANO KEENAN, Circuit Judge:

Ricardo A. Prudencio is a native and citizen of El Salvador

who has been granted lawful permanent resident alien status

in the United States. He petitions this Court for review of a

decision of the Board of Immigration Appeals (the Board), in

which the Board dismissed his appeal from an immigration

judge’s decision classifying him as an alien subject to

removal under section 237(a)(2)(A)(i) of the Immigration and

Nationality Act (INA), 8 U.S.C. § 1227(a)(2)(A)(i).

The order of removal was based on the immigration judge’s

determination that Prudencio previously had been convicted

of a crime involving moral turpitude. In making this determi-

nation, the immigration judge considered information

obtained using the three-step procedural framework estab-

PRUDENCIO v. HOLDER 3

lished by the Attorney General in Matter of Silva-Trevino, 24

I&N Dec. 687 (A.G. 2008). Because we conclude that the

moral turpitude provisions of the INA are not ambiguous and

do not contain any gap requiring agency clarification, we hold

that the procedural framework established in Silva-Trevino

was not an authorized exercise of the Attorney General’s

authority under Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, 467 U.S. 837 (1984). Accordingly, we grant

Prudencio’s petition and vacate the Board’s decision and the

order providing for Prudencio’s removal.

I.

Before the decision in Silva-Trevino, the majority of our

sister circuits applied the categorical and modified categorical

approaches set forth in Taylor v. United States, 495 U.S. 575

(1990), and Shepard v. United States, 544 U.S. 13 (2005), in

determining whether an alien’s prior conviction qualified as

a crime involving moral turpitude under the INA. The Attor-

ney General purported to alter application of these traditional

approaches in Silva-Trevino. Primarily, the Attorney General

concluded that if, after application of the categorical and mod-

ified categorical approaches, an alien’s record of conviction

still is inconclusive, immigration judges should engage in an

additional third step of analysis and "consider any additional

evidence the adjudicator determines is necessary or appropri-

ate" to resolve whether the alien was convicted of a crime

involving moral turpitude. 24 I&N Dec. at 704.

II.

Prudencio was accorded lawful permanent resident alien

status in September 2005. In October 2009, he was charged

in Prince William County, Virginia, with a violation of Vir-

ginia Code § 18.2-63 for the carnal knowledge, without the

use of force, of a 13-year-old child (the carnal knowledge

statute). In March 2010, in the Prince William County Juve-

nile and Domestic Relations District Court, Prudencio pleaded

4 PRUDENCIO v. HOLDER

guilty to the amended charge of contributing to the delin-

quency of a minor (the 2010 conviction), in violation of Vir-

ginia Code § 18.2-371 (the delinquency statute), a

misdemeanor. He received a sentence of 12 months’ incarcer-

ation with six months suspended.

In June 2010, the Department of Homeland Security (DHS)

initiated removal proceedings against Prudencio under 8

U.S.C. § 1227(a)(2)(A)(i).1 DHS argued that Prudencio was

subject to removal because, within five years of his admission

into the United States, he had been convicted of a crime

involving moral turpitude for which a sentence of one year or

longer could have been imposed. DHS based its action on

Prudencio’s conviction under the delinquency statute, which

provides in relevant part:

Any person 18 years of age or older, including the

parent of any child, who (i) willfully contributes to,

encourages, or causes any act, omission, or condition

which renders a child delinquent, in need of services,

in need of supervision, or abused or neglected as

defined in § 16.1-228, or (ii) engages in consensual

sexual intercourse with a child 15 or older not his

spouse, child, or grandchild, shall be guilty of a

Class 1 misdemeanor.

Va. Code § 18.2-371.

In considering DHS’s request for removal, the immigration

judge used the three-step procedural framework established

by the Attorney General in Silva-Trevino. Under this proce-

dural framework, the immigration judge first applied the cate-

1

DHS asserted two other bases for removal, which DHS later withdrew.

Additionally, DHS charged Prudencio with a violation of section

237(a)(2)(E)(i) of the INA, which the immigration judge declined to

address. However, the alleged violation of section 237(a)(2)(E)(i) is not

before us, because DHS has not filed a cross-appeal.

PRUDENCIO v. HOLDER 5

gorical approach approved in Taylor and Shepard to

determine if every conviction under the delinquency statute

inherently involved moral turpitude. Because he concluded

that the statute was divisible, encompassing some crimes that

involve moral turpitude and others that do not, the immigra-

tion judge proceeded to the second step of the Silva-Trevino

framework, under which he applied the modified categorical

approach articulated in Taylor and Shepard and reviewed Pru-

dencio’s record of conviction. Upon determining that the

record of conviction was inconclusive, the immigration judge

proceeded to apply the third step of the Silva-Trevino proce-

dural framework.

Pursuant to this third step, when the record of conviction

does not establish conclusively under which portion of a

divisible statute an alien was convicted, the Attorney General

has authorized immigration judges to consider evidence

beyond the record of conviction to the extent they deem it

"necessary and appropriate."2 Silva-Trevino, 24 I&N Dec. at

690. Applying this third step in the present case, the immigra-

tion judge reviewed the narrative report prepared by the

Prince William County Police Department relating to the

2010 conviction, which indicated that Prudencio had sexual

relations with a 13-year-old girl when he was over the age of

18. Based on this information, the immigration judge sus-

tained the removal charge and ordered that Prudencio be

removed to El Salvador.

Prudencio appealed the order of removability to the Board,

advancing two main arguments. First, he challenged the pro-

cedural framework established in Silva-Trevino, asserting that

the framework was predicated on an impermissible reading of

2

The Attorney General used the phrase "necessary and appropriate"

twice in outlining his procedural framework. Silva-Trevino, 24 I&N Dec.

at 690, 699 (emphasis added). However, in summarizing the framework

twice and in employing it in the case itself, he used the phrase "necessary

or appropriate." Id. at 687, 704, 708 (emphasis added).

6 PRUDENCIO v. HOLDER

the INA. Second, he contended that the documents reviewed

by the immigration judge under the third step of the Silva-

Trevino framework conclusively established that Prudencio

was convicted under subsection (i) of the delinquency statute,

which does not encompass crimes involving moral turpitude.

Prudencio argued that only a conviction under subsection

(ii) of the delinquency statute, involving consensual sexual

intercourse with a child 15 or older, qualified as a crime

involving moral turpitude. Because the documents considered

by the immigration judge showed that the victim was not 15

years of age or older, Prudencio asserted that he could not

have been convicted under subsection (ii) of the delinquency

statute and, therefore, must have been convicted under sub-

section (i) of that statute.

The Board rejected Prudencio’s arguments and dismissed

his appeal. In reaching its decision, the Board upheld the

immigration judge’s application of the three-step procedural

framework established in Silva-Trevino. The Board further

concluded that Prudencio did "not dispute the immigration

judge’s findings of fact," and that Prudencio had acknowl-

edged that his initial charge under the carnal knowledge stat-

ute was based on a sexual encounter with a female minor.

III.

A.

Prudencio argues on appeal that we should not defer to the

Silva-Trevino procedural framework, but instead should limit

our review to the categorical and modified categorical

approaches in determining whether he was convicted of a

crime involving moral turpitude. Prudencio contends that

under either of these approaches, his conviction cannot be

classified as a crime involving moral turpitude.

Because the Silva-Trevino procedural framework is central

to the resolution of this appeal, we begin our analysis with a

PRUDENCIO v. HOLDER 7

review of that case. Cristoval Silva-Trevino was a native of

Mexico admitted to the United States as a lawful permanent

resident. Silva-Trevino, 24 I&N Dec. at 690. In 2004, he

entered a plea of "no contest" in a Texas state court to the fel-

ony offense of "indecency with a child," in violation of Texas

Penal Code § 21.11(a)(1). Silva-Trevino, 24 I&N Dec. at 690.

That statute prohibits, among other things, sexual contact with

a child younger than 17 years of age by a person at least three

years older who is not married to the child. Tex. Penal Code

Ann. § 21.11(a)(1).

Arguing that Silva-Trevino had been convicted of an aggra-

vated felony, DHS began removal proceedings against him

the following year under 8 U.S.C. § 1227(a)(2)(A)(iii). Silva-

Trevino, 24 I&N Dec. at 691. The immigration court deter-

mined that Silva-Trevino’s conviction was categorically a

crime involving moral turpitude, rendering him ineligible for

adjustment of status. Id. Therefore, the immigration court

ordered his removal from the United States. Id.

The Board reversed the immigration court’s decision, con-

cluding that under both the categorical and the modified cate-

gorical approaches, DHS had failed to establish that Silva-

Trevino’s conviction qualified as a crime involving moral tur-

pitude. Id. at 692. Although DHS did not appeal the Board’s

decision, the Attorney General directed that the Board refer

the case to him under 8 C.F.R. § 1003.1(h)(1)(i). The Attor-

ney General stated that the case presented him with "an

opportunity to establish a uniform framework for ensuring

that the [INA]’s moral turpitude provisions are fairly and

accurately applied." Silva-Trevino, 24 I&N Dec. at 688.

In his decision in Silva-Trevino, the Attorney General

established a three-step procedural framework for determining

whether an alien’s conviction qualifies under the INA as a

crime involving moral turpitude. Id. at 704. In support of his

analysis, the Attorney General observed that the various cir-

cuit courts of appeal have applied different standards in their

8 PRUDENCIO v. HOLDER

categorical and modified categorical analyses. Id. at 693-94.

Invoking section 103(a)(1) of the INA and 8 C.F.R.

§ 1003.1(d)(1), the Attorney General purported to establish a

uniform framework for use throughout the nation for deter-

mining whether an alien’s conviction qualifies as a crime

involving moral turpitude. Id. at 695-96. His stated basis for

this action was his contention that the relevant sections of the

INA are ambiguous, and that "administrative agencies are not

bound by prior judicial interpretations of ambiguous statutory

provisions." Id. at 696 (citing National Cable & Telecomms.

Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005)).

The three-step procedural framework established by the

Attorney General in Silva-Trevino starts with a categorical

approach, under which the inquiry is terminated if the statute

at issue categorically either requires or excludes conduct

involving moral turpitude. The Attorney General stated that if,

however, there is a "realistic probability" that the statute could

be applied to encompass conduct that does not involve moral

turpitude, as well as conduct that does, the inquiry must con-

tinue to a second step of analysis. Id. at 697 (quoting Gon-

zales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)).

The second step described in Silva-Trevino is the modified

categorical approach approved by the Supreme Court in Tay-

lor and Shepard. At this stage in the analysis, the immigration

judge reviews the record of conviction to determine whether

the alien’s conviction qualifies under the statute as a crime

involving moral turpitude. Silva-Trevino, I&N Dec. at 698-99.

If the documents subject to review do not conclusively

resolve the inquiry, the Attorney General directed that immi-

gration judges should proceed to a third step. Id. at 699. It is

the addition of this third step that deviates most significantly

from the categorical and modified categorical approaches

applied in this circuit and in the majority of our sister circuits.

Under the third step of the Silva-Trevino procedural frame-

work, the Attorney General authorized immigration judges to

PRUDENCIO v. HOLDER 9

consider evidence beyond the record of conviction "if doing

so is necessary and appropriate." Id. The Attorney General did

not provide any guidance on the kind of evidence that may be

considered under this third step, stating only that the immigra-

tion judge may "consider any additional evidence or fact find-

ing" that the judge "determines is necessary or appropriate to

resolve accurately the moral turpitude question." Id. at 708.

B.

The Attorney General has based his decision to establish

this three-step procedural framework on his determination

that the use of the phrase "moral turpitude" in the INA is

ambiguous. The text of the statute on which the Attorney

General relies provides, in relevant part, that "any alien con-

victed 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) (the moral turpitude statute).3

The Attorney General opined that the statute is "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." Silva-Trevino, 24 I&N Dec. at 693. He con-

cluded that "[t]o the extent [the statute] does suggest a

method, the text actually cuts in different directions." Id.

According to the Attorney General, certain language, such as

the use of the word "convicted" rather than "committed" at the

beginning of the statute, suggests that the inquiry should be

categorical and should focus on the statutory elements

required for conviction, rather than on the particular facts of

an individual crime. Id. He asserted that other language, how-

3

Both this case and Silva-Trevino involve 8 U.S.C. § 1227(a)(2)(A)(i),

which employs the phrase "crime involving moral turpitude." However, a

greater understanding of that phrase comes from its use in 8 U.S.C.

§ 1182(a)(2)(A)(i)(I). Accordingly, we will conduct our analysis based on

this latter statute, as the Attorney General does in Silva-Trevino.

10 PRUDENCIO v. HOLDER

ever, "seems to call for, or at least allow, inquiry into the par-

ticularized facts of the crime." Id. In support of this latter

proposition, the Attorney General identified two statutory ref-

erences: (1) the use of the word "involving," and (2) the lan-

guage regarding aliens who admit to "committing" certain

"acts." Id. We disagree with the Attorney General’s interpre-

tation.

IV.

In reviewing the Attorney General’s analysis and the proce-

dural framework established in Silva-Trevino, we first con-

sider Prudencio’s argument challenging the basis for the

Attorney General’s invocation of his authority. Because Pru-

dencio opposes an agency determination reached through

adjudication, we employ the analysis prescribed by the

Supreme Court in Chevron. 467 U.S. 837.

Under the Chevron analysis, we first consider whether

"Congress has directly spoken to the precise question" at

issue. Id. at 842. If, using traditional tools of statutory con-

struction, we determine that Congress manifested an intention

on the precise question, such intention must be given effect

and the analysis concludes. Id. at 842-43 n.9. When, however,

the statute is ambiguous or silent with respect to the precise

issue, we must proceed to decide whether the agency’s inter-

pretation of the statute is reasonable and, thus, is entitled to

deference. Id. at 843.

We previously have accorded substantial deference to

DHS’s interpretation of the statutes and regulations that the

agency administers. Yousefi v. U.S. INS, 260 F.3d 318, 325

(4th Cir. 2001) (per curiam). In Yousefi, we held that the

Chevron framework provides the appropriate method for ana-

lyzing DHS’s determination regarding what type of conduct

involves moral turpitude under the INA. Id. at 326. We

observed that deference was appropriate in that circumstance

because Congress did not define the phrase "crime involving

PRUDENCIO v. HOLDER 11

moral turpitude," instead "leaving the phrase to administrative

and judicial interpretation." Id. at 326.

We face a different question in this appeal. At issue in this

case 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 pro-

cedure for determining whether a particular conviction quali-

fies as a crime involving moral turpitude. In part of its

argument, DHS conflates these concepts and relies on the

asserted ambiguity inherent in the phrase "crime involving

moral turpitude" to justify deference to the Attorney Gener-

al’s three-step procedural framework.

These two concepts, however, require distinct inquiries. In

answering the question before us, whether the moral turpitude

statute provides direction concerning the process for deter-

mining whether a particular conviction qualifies as a crime

involving moral turpitude, we are guided by the Chevron

analysis.

A.

Under the Chevron analysis, we consider the language of

the moral turpitude statute to resolve whether the statutory

language is ambiguous or silent regarding the appropriate pro-

cedure for determining whether a particular conviction

involves moral turpitude. See Chevron, 467 U.S. at 843. In

making this assessment, we consider the statute’s plain lan-

guage. Id. at 843 n.9.

The moral turpitude statute provides, in material part, that:

Except as provided in clause (ii), any alien convicted

of, or who admits having committed or who admits

committing acts which constitute the essential ele-

ments of—

12 PRUDENCIO v. HOLDER

(I) a crime involving moral turpitude (other

than a purely political offense) or an

attempt or conspiracy to commit such a

crime . . .

is inadmissible.

8 U.S.C. § 1182(a)(2)(A)(i)(I).

This language in the moral turpitude statute includes three

distinct provisions that are relevant here. First, under the stat-

ute, any alien who is convicted of a crime involving moral

turpitude is inadmissible. Second, the statute precludes the

admission of any alien who has admitted having committed a

crime involving moral turpitude. Third, the statute bars admis-

sion of any alien who has admitted committing acts that sat-

isfy the essential elements of a crime involving moral

turpitude.

These three provisions fall into two separate categories,

namely, a category involving convictions and a category

involving admissions. The statutory language addressing con-

victions is found exclusively in the first part of the moral tur-

pitude statute. This first portion of the statute is the one at

issue in this case, and was central to the decision in Silva-

Trevino.

In contrast, the statutory category referring to admissions is

found in the second and third provisions of the statute, and

addresses only acts that an alien has admitted committing.

The language regarding "committing acts," relied on by the

Attorney General, only appears within this portion of the stat-

ute addressing admissions, and not the part of the statute

addressing convictions. Because there are no admissions at

issue in the present case, and likewise were none at issue in

Silva-Trevino, the Attorney General’s reliance on the words

"committing acts" in support of his finding of statutory

ambiguity is misplaced.

PRUDENCIO v. HOLDER 13

We also disagree with the Attorney General’s analysis of

the word "involving." In Silva-Trevino, the Attorney General

interpreted the word in isolation, relying on the dissent in

Marciano v. INS, which unsuccessfully argued that adjudica-

tors should determine whether "moral turpitude was in fact

involved" in reviewing prior convictions. Silva-Trevino, 24

I&N Dec. at 693 (quoting Marciano v. INS, 450 F.2d 1022,

1028 (8th Cir. 1971) (Eisele, J., dissenting)) (emphasis

added). The Attorney General asserted that, viewed in this

context, the word "involving" allows for an inquiry into the

particular facts underlying a conviction. See Silva-Trevino, 24

I&N Dec. at 693. However, both the context in which this

word is used and the structure of the statute refute the Attor-

ney General’s interpretation.

The word "involving" must be considered in its statutory

context. As set forth in the statute, the participle "involving"

cannot be divorced from the unitary phrase "crime involving

moral turpitude," which is a term of art that has been used for

over one hundred years and predates the INA. See Jean-Louis

v. Attorney General, 582 F.3d 462, 477 (3d Cir. 2009) (citing

Jordan v. De George, 341 U.S. 223, 227 (1951) and Baxter

v. Mohr, 37 Misc. 833, 76 N.Y.S. 982 (1902)). As the Third

Circuit noted in Jean-Louis, the use of the term "involving"

in the phrase "crime involving moral turpitude" is no more

expansive than use of the word "of" in the term "crime of vio-

lence." Id. at 478.

This unitary understanding of the phrase "crime involving

moral turpitude" is supported by another part of the moral tur-

pitude statute. While the third provision in the statute refer-

ring to admissions is not directly applicable to the resolution

of this case, its construction illuminates the cohesive nature of

the phrase "crime involving moral turpitude." That provision

states that "any alien . . . 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).

This syntax demonstrates that the focus of the statutory

14 PRUDENCIO v. HOLDER

inquiry in this case is not the acts of moral turpitude them-

selves, but the admissions establishing the essential elements

of a particular type of crime, in this case, a crime involving

moral turpitude. Therefore, this statutory language reinforces

the conclusion that the focus of the inquiry directed by the

statute is the alien’s actual conviction, not the conduct under-

lying that conviction.

We also consider Congress’ use of the word "conviction"

in the moral turpitude statute. The meaning of the word does

not change when used in an immigration statute, as opposed

to its customary application in criminal statutes. To assign a

different statutory meaning to the word "conviction" in the

isolated context of crimes involving moral turpitude, and only

within the realm of the INA, as the Attorney General proposes

in Silva-Trevino, 24 I&N Dec. at 704, thus lacks both logic

and statutory support.

Based on these considerations, we conclude that the plain

language of the moral turpitude statute is not ambiguous.

Because the relevant statutory language refers only to convic-

tions, 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 "com-

mitting" 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.

B.

Because the moral turpitude statute is not ambiguous, DHS

is authorized under Chevron to fill a gap in the statutory

scheme only if the statute is silent regarding the process for

determining whether a particular conviction qualifies as a

crime involving moral turpitude. See Chevron, 467 U.S. at

843; Nat’l City Bank v. Turnbaugh, 463 F.3d 325, 332 (4th

Cir. 2006). DHS argues that such a gap exists because neither

PRUDENCIO v. HOLDER 15

the INA generally, nor the moral turpitude statute in particu-

lar, prescribes the methodology by which an adjudicator

determines whether a crime qualifies as a crime involving

moral turpitude.

Contending that there is a gap in this aspect of the statutory

language, DHS observes that the term "moral turpitude" will

not arise in an alien’s record of conviction because the phrase

is not a statutory element of any state or federal crime. There-

fore, DHS asserts, a circumstance-specific inquiry is permissi-

ble under the INA. Further, in an attempt to distinguish the

Supreme Court’s decisions in Taylor and Shepard, DHS

emphasizes that these cases were decided in the context of

criminal statutes and thus are not binding in interpreting the

INA. We address these arguments in turn.

Although DHS is correct that the term "moral turpitude" is

not usually an element of an offense and thus will not appear

literally in the record of conviction, courts nevertheless have

been able to interpret this phrase for over a century, and a

robust body of law has developed in this regard. Moreover,

DHS retains the authority to classify various types of offenses

as "crimes involving moral turpitude," rendering fact-specific

inquiries into individual violations unnecessary. See Yousefi,

260 F.3d at 326. And, plainly, prosecutors retain the ability to

highlight aspects of moral turpitude present in individual

offenses by ensuring that these aspects appear in the record of

conviction in the content of plea colloquies, in explicit factual

findings made by the trial judge, or in jury instructions given

in the underlying criminal cases. See Shepard, 544 U.S. at 15;

Taylor, 495 U.S. at 602.

Our conclusion is not altered by DHS’s argument that the

Supreme Court’s holding in Nijhawan v. Holder, 129 S. Ct.

2294 (2009), decided after the decision in Silva-Trevino, sup-

ports the use of a circumstance-specific analysis in applying

the INA. DHS broadly asserts that the holding in Nijhawan

permits an adjudicator to consider facts outside the record of

16 PRUDENCIO v. HOLDER

conviction when considering statutory criteria that are not

characteristically an element of an offense. In Nijhawan, an

alien faced removal for his conviction of an aggravated

offense "that . . . involves fraud or deceit in which the loss to

the victim or victims exceeds $10,000." Id. at 2297 (emphasis

in original) (quoting 8 U.S.C. § 1101(a)(43)(M)(i)). The Court

noted that this language does not refer to an element of the

fraud or deceit crime but "to the particular circumstances in

which an offender committed" this type of crime "on a partic-

ular occasion." Id. at 2298. DHS bases its argument on this

specific language.

We disagree that the quoted language in Nijhawan permits

an unrestricted circumstance-specific inquiry in the absence

of express guidance from Congress. In 8 U.S.C.

§ 1101(a)(43)(M)(i), Congress modified the generic crime of

"fraud or deceit" with a qualifying phrase that requires a fact-

specific review. No analogous command exists in the moral

turpitude statute in the INA. The phrase "crime involving

moral turpitude" is not modified by any other statutory direc-

tive. Therefore, DHS’s entreaty that we consider mere factual

allegations made in the underlying criminal case cannot be

reconciled with the statutory directives established by Con-

gress in the INA.

In addition to the fact that there is no statutory support in

the INA for expanding the reach of Nijhawan, practical con-

siderations also demonstrate its inapplicability. As noted

above, the phrase "crime involving moral turpitude" is a term

of art in a way that "offense . . . in which the loss to the victim

or victims exceeds $10,000" is not. The contours of the phrase

"crime involving moral turpitude" have been developed over

a long history of judicial interpretation, while the phrase a

"loss [that] exceeds $10,000" is an objective criterion that

requires no interpretation whatsoever. Thus, an inquiry

whether a loss exceeds $10,000 involves only the inspection

of a single threshold fact, but a determination whether a par-

ticular conviction was for a crime involving moral turpitude

PRUDENCIO v. HOLDER 17

often could require evaluation of all the evidence in an under-

lying criminal case by an adjudicator wholly unfamiliar with

those proceedings.

Such an unbridled evaluation poses very real evidentiary

concerns. The third step of the Silva-Trevino framework

allows an immigration judge to rely on documents of ques-

tionable veracity as "proof" of an alien’s conduct. These doc-

uments, such as police reports and warrant applications, often

contain little more than unsworn witness statements and initial

impressions. Indeed, these materials are designed only to per-

mit a determination of probable cause. Further, because these

submissions are generated early in an investigation, they do

not account for later events, such as witness recantations,

amendments, or corrections. To confer upon such materials

the imprimatur of fact, even for the narrow application of

removal proceedings involving questions of moral turpitude,

accords these documents unwarranted validity.

Although DHS correctly observes that immigration

removal proceedings are civil, rather than criminal, in nature,

this difference does not affect the risks inherent in considering

facts only alleged, but not necessarily proved, in the underly-

ing criminal proceedings. As the Supreme Court has empha-

sized repeatedly, "the practical difficulties and potential

unfairness of a factual approach are daunting." Shepard, 544

U.S. at 20; Taylor, 495 U.S. at 601. Therefore, we decline to

sanction such a factual approach here.

Based on these considerations, we conclude that the moral

turpitude statute is neither ambiguous nor silent, but explicitly

directs that apart from certain types of admissions made by a

defendant at his criminal proceedings, an adjudicator applying

the moral turpitude statute may consider only the alien’s prior

conviction and not the conduct underlying that conviction.

Thus, under the Chevron analysis, we do not defer to the

Attorney General’s establishment of a three-step procedural

18 PRUDENCIO v. HOLDER

framework for determining whether a particular conviction is

for a crime involving moral turpitude.

We observe that our rejection of the Silva-Trevino frame-

work is in accord with decisions of three of our sister circuits.

In Jean-Louis, the Third Circuit engaged in an extensive anal-

ysis of the Attorney General’s decision, concluding that the

moral turpitude statute was not ambiguous. 582 F.3d 462. In

a more abbreviated review, the Eighth Circuit declined an

alien’s entreaty to employ Silva-Trevino’s third step and held

that the Attorney General’s decision was not entitled to defer-

ence. Guardado-Garcia v. Holder, 615 F.3d 900, 902 (8th

Cir. 2010). Most recently, the Eleventh Circuit rejected the

Silva-Trevino framework after employing an analysis similar

to the one we have applied here. See Fajardo v. U.S. Attorney

General, 659 F.3d 1303 (11th Cir. 2011). In Fajardo, the

Eleventh Circuit concluded that DHS’s interpretation of the

moral turpitude statute was not entitled to deference under

Chevron because the term "conviction" is unambiguous. Id.

Upon our rejection of the Silva-Trevino framework, we

apply the analysis developed in Taylor and Shepard. Accord-

ingly, we proceed to consider the present record guided by

those decisions.

V.

A.

To determine whether Prudencio’s conviction was for a

crime involving moral turpitude, we first apply the categorical

approach. This approach is mandated by Congress’ choice to

define the condition of deportation in terms of "convictions,"

rather than "conduct." See Taylor, 495 U.S. at 600-01. This

analysis requires that we examine the statutory elements of

the crime, and not consider the facts or conduct of the particu-

lar violation at issue. See Yousefi, 260 F.3d at 326 (citing Cas-

tle v. INS, 541 F.2d 1064, 1066 (4th Cir. 1976) (per curiam)).

PRUDENCIO v. HOLDER 19

In employing these approaches for purposes of the INA, we

accord the Attorney General deference regarding the determi-

nation of what type of conduct involves moral turpitude.

Yousefi, 260 F.3d at 326. The Attorney General has directed

that, generally, a crime involves moral turpitude if it is "inher-

ently base, vile, or depraved and contrary to accepted rules of

morality and the duties owed between persons or to society in

general." Matter of Olquin, 23 I&N Dec. 896, 896 (B.I.A.

2006).

The delinquency statute, as we have observed, consists of

two subsections. Subsection (i) punishes "[a]ny person 18

years of age or older . . . who willfully contributes to, encour-

ages, or causes any act, omission, or condition which renders

a child delinquent, in need of services, in need of supervision,

or abused or neglected . . . ." Va. Code § 18.2-371. As DHS

acknowledges, this subsection encompasses various behav-

iors, such as the inducement of a minor to commit the misde-

meanor crime of trespassing, see Hubbard v. Commonwealth,

152 S.E.2d 250, 253 (Va. 1967), which do not qualify as

crimes involving moral turpitude.

Subsection (ii) of the delinquency statute, however, crimi-

nalizes conduct of a different nature. That subsection punishes

any person 18 years of age or older who "engages in consen-

sual sexual intercourse with a child 15 or older not his spouse,

child, or grandchild." Va. Code § 18.2-371.

The Attorney General has concluded that for purposes of

applying the INA, "any intentional sexual contact by an adult

with a child involves moral turpitude." Silva-Trevino, 24 I&N

Dec. at 705 (emphasis in original); see also Castle, 541 F.2d

at 1066 ("It is well established that the Maryland statutory

offense of carnal knowledge of a female between the ages of

fourteen and sixteen years manifestly involves moral turpi-

tude.") (quotation marks omitted). Based on this determina-

tion by the Attorney General regarding the scope of conduct

constituting a crime of moral turpitude under the INA, we

20 PRUDENCIO v. HOLDER

hold that a conviction under subsection (ii) of the delinquency

statute constitutes a conviction of a crime involving moral tur-

pitude. See Yousefi, 260 F.3d at 326. However, because the

delinquency statute also encompasses behaviors that do not

qualify as crimes involving moral turpitude, the categorical

approach does not resolve our inquiry, and we proceed under

the modified categorical approach to consider further whether

Prudencio was convicted of a crime involving moral turpi-

tude. See Shepard, 544 U.S. at 17.

B.

Under the modified categorical approach, we review the

record of conviction to determine whether the crime of which

Prudencio was convicted qualifies as a crime involving moral

turpitude. See Taylor, 495 U.S. at 602. In cases such as the

one before us, in which the conviction at issue was based on

a guilty plea, the record of conviction is composed of the

charging document, the plea agreement, the plea colloquy,

and any explicit findings of fact made by the trial judge. Shep-

ard, 544 U.S. at 15.

Prudencio pleaded guilty to the amended charge of contrib-

uting to the delinquency of a minor, in violation of the delin-

quency statute. The record of conviction does not contain a

plea colloquy or findings of fact by the trial judge, but con-

sists only of a single form entitled "Warrant of

Arrest—Felony." Although this warrant originally charged a

violation of the carnal knowledge statute, the warrant later

was amended to charge a violation of the delinquency statute,

and a handwritten entry on the face of the document shows

that Prudencio pleaded guilty to the amended charge. How-

ever, no other entry on the warrant, the sole document before

us in the record of conviction, provides any information

showing under which subsection of the delinquency statute

Prudencio was convicted.

Although the police report indicated that Prudencio

engaged in consensual sexual intercourse with a minor, that

PRUDENCIO v. HOLDER 21

report may not be considered as part of the record of convic-

tion. See Shepard, 544 U.S. at 20-23. Further, the arrest war-

rant originally alleged a violation to which Prudencio did not

plead guilty. Thus, Prudencio did not admit to any facts apart

from the amended charge stated in the arrest warrant, and any

other factual allegations cannot be attributed to him. See

United States v. Alston, 611 F.3d 219, 227 (4th Cir. 2010).

We find no merit in DHS’s contention that Prudencio has

conceded that he was convicted of a crime involving moral

turpitude, because he did not dispute the immigration judge’s

findings of fact and acknowledged that he initially was

charged with carnal knowledge of a child 13 years of age. The

findings of fact made by the immigration judge may not be

considered under the modified categorical approach, because

those findings were not part of Prudencio’s record of convic-

tion but were derived solely from information acquired under

the third step of the Silva-Trevino procedural framework.

Prudencio’s original charge likewise is irrelevant. The orig-

inal charge on the warrant alleging a violation of the carnal

knowledge statute was superseded once the warrant was

amended to charge a violation of the delinquency statute.

Thus, Prudencio’s acknowledgement before the Board of the

nature of his original charge does not constitute an admission

of any particular conduct.

VI.

In conclusion, we hold that DHS has not satisfied its bur-

den of showing that Prudencio’s 2010 conviction qualified as

a crime involving moral turpitude. We therefore grant the

alien’s petition, vacate the immigration judge’s order of

removal, and enter final judgment in favor of Prudencio.

PETITION GRANTED;

VACATED AND FINAL JUDGMENT

22 PRUDENCIO v. HOLDER

SHEDD, Circuit Judge, dissenting:

The categorical approach adopted by the majority is a doc-

trine created by the judicial branch to address issues of con-

cern to the judicial branch—protection of Sixth Amendment

rights and efficient use of judicial resources. Although an

agency may choose to adopt some version of this approach,

there is no requirement to expand this difficult, almost

unworkable, limiting analysis to an agency, especially in the

immigration context, and I would not do so.

Instead, employing the familiar analysis prescribed by

Chevron, U.S.A., Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837 (1984), I would defer to the Attorney Gen-

eral’s position in Matter of Silva-Trevino, 24 I & N Dec. 687,

688-90 (A.G. 2008). The Chevron analysis, and the deference

it counsels, is particularly applicable in the immigration con-

text. As we have noted, "[i]n considering the Attorney Gener-

al’s interpretation of the [Immigration and Nationality Act],

we are mindful of the fact that ‘the power to expel or include

aliens [is] a fundamental sovereign attribute exercised by the

Government’s political departments largely immune from

judicial control.’"1 The Supreme Court has reminded lower

courts that "it is important to underscore the limited scope of

judicial inquiry into immigration legislation," and that "‘over

no conceivable subject is the legislative power of Congress

more complete than it is over’ the admission of aliens." Fiallo

v. Bell, 430 U.S. 787, 792 (1977) (quoting Oceanic Naviga-

tion Co. v. Stranahan, 214 U.S. 320, 339 (1909)).

1

Blanco de Belbruno v. Ashcroft, 362 F.3d 272, 278 (4th Cir. 2004)

(quoting Fiallo v. Bell, 430 U.S. 787, 792 (1977) (internal quotation marks

omitted)); see also INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999)

(quoting INS v. Abudu, 485 U.S. 95, 110 (1988) ("[J]udicial deference to

the Executive Branch is especially appropriate in the immigration context

where officials ‘exercise especially sensitive political functions that impli-

cate questions of foreign relations.’").

PRUDENCIO v. HOLDER 23

We summarized the broad scope of this deference in

Blanco de Belbruno:

The Attorney General enjoys broad powers with

respect to "the administration and enforcement of

[the INA] and all other laws relating to the immigra-

tion and naturalization of aliens." 8 U.S.C.

§ 1103(a)(1) (2000). The INA empowers the Attor-

ney General to "establish such regulations; . . . issue

such instructions; and perform such other acts as he

deems necessary for carrying out his authority"

under the immigration laws. 8 U.S.C. § 1103(a)(3)

(2000).

Blanco de Belbruno v. Ashcroft, 362 F.3d 272, 279 (4th Cir.

2004).

The immigration context provides the executive with the

broadest discretion to act, but the majority denies them the

slightest discretion to engage in further inquiry in a small

number of cases where the categorical approach does not

yield a definitive answer. Therefore, I respectfully dissent.

I.

Ricardo Prudencio, at the age of 20, had sex with a 13-

year-old girl and infected her with a sexually transmitted dis-

ease. Prudencio pled guilty to one count of contributing to the

delinquency of a minor, in violation of Virginia Code Anno-

tated § 18.2-371. As a legal permanent resident, Prudencio is

subject to removal if he is "convicted of" a "crime involving

moral turpitude." 8 U.S.C. § 1227(a)(2)(A)(i)(I).

In Matter of Silva-Trevino, the Attorney General, con-

cerned with the "patchwork of different approaches across the

nation" courts applied to the moral turpitude provisions, deter-

mined that, in certain limited circumstances, immigration

judges may consider evidence beyond the record of convic-

24 PRUDENCIO v. HOLDER

tion in determining if an alien was convicted of a "crime

involving moral turpitude." 24 I & N Dec. at 688. Using this

approach, the Board of Immigration Appeals (BIA) deter-

mined that Prudencio was convicted of a crime involving

moral turpitude. Specifically, the BIA concluded that Pruden-

cio’s record of conviction was inconclusive as to whether he

was convicted of a crime involving moral turpitude, but that

the immigration judge’s findings of fact—which Prudencio

did not dispute—showed that Prudencio had a sexual encoun-

ter with a "child 13 years of age," and that his conviction was

for a crime involving moral turpitude. (J.A. 107).

In contrast, the majority decides that by using the term

"convicted," Congress unambiguously mandated that courts

apply the "categorical approach" created by the Supreme

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

Taylor v. United States, 495 U.S. 575 (1990) for use in

enhancing sentences under the Armed Career Criminal Act.

The majority further concludes that, as a result, immigration

judges are prohibited from looking at evidence beyond the

record of conviction to determine if a conviction was for a

"crime involving moral turpitude." In reaching this conclu-

sion, the majority necessarily declines to defer to Silva-

Trevino.

I disagree with the majority. Like the Seventh Circuit, I

conclude that "when deciding how to classify convictions

under criteria that go beyond the criminal charge-such as . . .

whether the crime is one of ‘moral turpitude,’ the agency has

the discretion to consider evidence beyond the charging

papers and judgment of conviction." Ali v. Mukasey, 521 F.3d

737, 743 (7th Cir. 2008). Moreover, I question the wisdom of

imposing an approach on immigration judges that we have, at

times, proven unable to apply in a workable fashion in the

Armed Career Criminal Act context where it is required. See,

e.g., United States v. Vann, ___ F.3d ___, 2011 WL 4793230,

at *14 (4th Cir. 2011) (Agee, J., concurring).2 As Justice Alito

2

The twelve judges who participated in Vann accounted for a total of six

opinions plus a per curiam opinion announcing the judgment of the court.

PRUDENCIO v. HOLDER 25

has noted, "the ‘categorical approach’ to predicate offenses

has created numerous splits among the lower federal courts,"

and "clarity has been the true inadvertent casualty" of the

approach. Chambers v. United States, 555 U.S. 122, 133

(2009) (Alito, J., concurring).3

At bottom, I find it difficult—if not impossible—to accept

that Congress intended for persons such as Prudencio to

remain in the United States "simply because there might have

been no moral turpitude in the commission by other individu-

als (real or hypothetical) of crimes described by the wording

of the same statute under an identical indictment." Marciano

v. INS, 450 F.2d 1022, 1027 (8th Cir. 1971) (Eisele, J., dis-

senting).

II.

In applying Chevron, we first consider whether "Congress

has directly spoken to the precise question" at issue. Chevron,

467 U.S. at 842. If Congress has so spoken, the inquiry ends

because courts and agencies "must give effect to the unam-

biguously expressed intent of Congress." Id. at 843. If the

statute is silent, however, "agencies [generally] have authority

to fill gaps." Nat’l Cable & Telecomm. Ass’n v. Gulf Power

Co., 534 U.S. 327, 339 (2002). In cases of statutory silence,

we "must defer, under Chevron, to [an agency’s interpretation

of its governing statute], so long as that interpretation is per-

missible in light of the statutory text and reasonable." Ohio

Valley Envtl. Coal. v. Bulen, 429 F.3d 493, 498 (4th Cir.

2005) (internal quotation marks omitted) (emphasis added).

The INA provides several moral turpitude provisions, one

of which is relevant to our case. Section 1227(a)(2)(A)(i)(I)

3

In fact, it was the categorical approach’s uncanny ability to sow confu-

sion and create circuit splits that prompted the Attorney General’s decision

to implement a uniform framework for the moral turpitude provisions in

Silva-Trevino.

26 PRUDENCIO v. HOLDER

provides for the removal of an alien "convicted of" a "crime

involving moral turpitude." In Silva-Trevino, the Attorney

General laid out an in-depth approach to applying the moral

turpitude provisions of the INA in response to the "patch-

work" application of those provisions that the categorical

approach had wrought. Silva-Trevino, 24 I & N Dec. at 688.

As the Attorney General noted, "confusion remains about

what, if anything, may follow such an inquiry where categori-

cal analysis does not resolve the question" of whether an alien

was convicted of a crime involving moral turpitude. Silva-

Trevino, 24 I & N Dec. at 694.4 In an effort to resolve the lack

of uniform treatment of the moral turpitude provisions across

the federal circuits, the Attorney General set forth the follow-

ing test:

First, in evaluating whether an alien’s prior offense

is one that categorically involves moral turpitude,

immigration judges must determine whether there is

a "realistic probability, not a theoretical possibility,"

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.

Cf. Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193

(2007).

Second, where this categorical analysis does not

resolve the moral turpitude inquiry in a particular

case, an adjudicator should proceed with a "modified

categorical" inquiry. In so doing, immigration judges

should first examine whether the alien’s record of

conviction—including documents such as the indict-

ment, the judgment of conviction, jury instructions,

4

In determining that the statutory language permitted this approach, the

Attorney General relied on the Seventh Circuit’s opinion in Ali and the

BIA’s opinion in Matter of Babaisakov, 24 I & N Dec. 306 (BIA 2007),

which adopted a circumstance-specific approach to 8 U.S.C.

§ 1101(a)(43)(M)(i).

PRUDENCIO v. HOLDER 27

a signed guilty plea and the plea tran-

script—evidences a crime that in fact involved moral

turpitude. When the record of conviction is inconclu-

sive, judges may, to the extent they deem it neces-

sary and appropriate, consider evidence beyond the

formal record of conviction. The goal of this inquiry

is to discern the nature of the underlying conviction

where a mere examination of the statute itself does

not yield the necessary information; it is not an occa-

sion to relitigate facts or determinations made in the

earlier criminal proceeding.

Id. at 689. Thus, under this approach, the first two steps hew

closely to the Shepard/Taylor categorical and modified cate-

gorical approaches. It is only the third step that moves beyond

the modified categorical approach, permitting immigration

judges to examine additional evidence in cases where the first

two steps fail to provide a definitive answer to the moral tur-

pitude inquiry "if doing so is necessary and appropriate to

ensure proper application of the Act’s moral turpitude provi-

sions." Id. at 699. This language does not create an open-

ended and unworkable approach, but rather limits the immi-

gration judge’s ability to consider additional evidence, prohib-

iting the judge from engaging in fishing expeditions.5

The majority concludes that the term "convicted" unam-

biguously requires the categorical approach and, accordingly,

that there is no gap for the Attorney General to fill. The

majority further concludes that the phrase "crime involving

moral turpitude" does not create any ambiguity because "in-

volving" does not counsel an individualized approach.

I agree with the majority that the term "convicted" is unam-

biguous, but I do not agree that its appearance in a statute

5

In addition to this limitation, the BIA and immigration judges also

would be required to apply "fundamentally fair procedures" in receiving

additional evidence. Nijhawan v. Holder, 129 S.Ct. 2294, 2303 (2009).

28 PRUDENCIO v. HOLDER

unambiguously requires immigration judges to apply the cate-

gorical approach to the moral turpitude provisions. Instead,

the statute is simply silent as to what approach immigration

judges may use in applying the "moral turpitude" provisions.

I would defer to the Attorney General’s opinion in Silva-

Trevino, which represents a measured approach to determin-

ing whether an alien was convicted for a "crime involving

moral turpitude." Several reasons lead me to this conclusion.

First, the bases for applying the categorical approach are

inapplicable in this setting. The Taylor/Shepard approach was

created for application in criminal sentencings "out of desire

for the ‘avoidance of collateral trials,’" or the "specter of

mini-trials," United States v. Dean, 604 F.3d 169, 175 (4th

Cir. 2010) (quoting Shepard, 544 U.S. at 23), and the "alloca-

tion of tasks between judge and jury under the sixth amend-

ment," Ali, 521 F.3d at 741. Of course, "[n]either of these

reasons applies to immigration proceedings." Id. Cf. United

States v. Savillon-Matute, 636 F.3d 119, 123 n.6 (4th Cir.

2011) (noting doubt about continuing vitality of categorical

approach in Sentencing Guidelines for same reasons); Dean,

604 F.3d at 173-74 (noting Shepard’s Sixth Amendment

rationale no longer applicable to advisory Sentencing Guide-

lines). Immigration proceedings are civil, not criminal, thus

negating any Sixth Amendment concerns, "[a]nd how much

time the agency wants to devote to the resolution of particular

issues is, we should suppose, a question for the agency itself

rather than the judiciary." Ali, 521 F.3d at 741. The efficient

operation of the executive branch is simply not the judiciary’s

responsibility. See Vermont Yankee Nuclear Power Corp. v.

Natural Res. Def. Counsel, Inc., 435 U.S. 519, 544 (1978)

("[T]he agency should normally be allowed to exercise its

administrative discretion in deciding how, in light of internal

organization considerations, it may best proceed to develop

the needed evidence.") (internal quotation marks omitted);

Blanco de Belbruno, 362 F.3d at 280 (noting that "how [the

Attorney General] allocates those resources to address the

burden of increasing claims is a calculation that courts should

PRUDENCIO v. HOLDER 29

be loathe to second guess"). Thus, because the bases for Shep-

ard and Taylor are inapplicable in the immigration context, I

do not believe Congress’s use of the term "convicted" neces-

sarily requires the categorical approach.6

Second, I believe recent Supreme Court precedent weakens

the argument that the categorical approach is required for the

moral turpitude provisions. In Nijhawan, the Court was tasked

with answering whether to apply the categorical approach in

the immigration context to determine if a prior conviction was

for "an offense that . . . involves fraud or deceit in which the

loss to the . . . victims exceeds $10,000." 8 U.S.C.

§ 1101(a)(43)(M)(i). The Court began by noting the "interpre-

tive difficulty" the statute posed was due to the fact "that in

ordinary speech words such as ‘crime,’ ‘felony,’ ‘offense,’

and the like sometimes refer to a generic crime, say, the crime

of fraud or theft in general, and sometimes refer to the spe-

6

The majority, and the Third and Eleventh Circuits, in Jean-Louis v.

Attorney General, 582 F.3d 462 (3d Cir. 2009), and Fajardo v. U.S. Atty.

Gen., 659 F.3d 1303 (11th Cir. 2011), also rely on the fact that courts have

long applied what has been called a traditional or categorical approach in

immigration proceedings. Under Nat’l Cable & Telecomm. Ass’n v. Brand

X Internet Servs., 545 U.S. 967 (2005), "[a] court’s prior judicial construc-

tion of a statute trumps an agency construction otherwise entitled to Chev-

ron deference only if the prior court decision holds that its construction

follows from the unambiguous terms of the statute and thus leaves no

room for agency discretion." Id. at 982. In this situation, "that’s not what

[earlier caselaw] say[s]. . . . [It] just carr[ies] over to immigration proceed-

ings an approach familiar to the federal judiciary from criminal prosecu-

tions." Ali, 521 F.3d at 743.

It is somewhat ironic that one of the first reported cases applying the

categorical approach, United States ex rel. Mylius v. Uhl, 210 F. 860 (2d

Cir. 1914), concluded the approach was necessary, in part, to guarantee

the "uniform and efficient administration of the law," id. at 862, and to

prevent the "manifestly unjust" result of "exclud[ing] one person and

admit[ting] another where both were convicted of [the same crime]," id.

at 863. Of course, as the Attorney General recounted in Silva-Trevino, the

categorical approach causes the very problems it supposedly was created

to address.

30 PRUDENCIO v. HOLDER

cific acts in which an offender engaged on a specific occa-

sion." Nijhawan, 129 S.Ct. at 2298. The Court explained that

if the statute referred to a "generic" crime, the categorical

approach was appropriate, but that if the statute was "referring

to the specific way in which an offender committed the crime

on a specific occasion," then the Court "must look to the facts

and circumstances underlying an offender’s conviction." Id. at

2298-99.

The Nijhawan Court ultimately concluded that

§ 1101(a)(43)(M)(i) required a "circumstance-specific"

approach, not the Shepard/Taylor categorical approach. Id. at

2301. The Court found that the use of "in which" counseled

for such an approach and further noted that very few state or

federal statutes specifically have a $10,000 threshold as an

element of the offense, thus distinguishing the provision from

the types of "generic" offenses listed in the ACCA. Id. at

2301-02.

Relying on Nijhawan, both the Fifth Circuit and our own

court recently noted that the categorical approach is not

always required in immigration cases. See Salem v. Holder,

647 F.3d 111, 119 (4th Cir. 2011) (declining to apply categor-

ical approach to an alien’s burden of production and noting

"the Supreme Court has expressed some reservation about a

wholesale adoption of the categorical approach in the immi-

gration context"); Bianco v. Holder, 624 F.3d 265, 272-73

(5th Cir. 2010) (noting that court had previously applied the

categorical approach to the moral turpitude provisions but

nonetheless applying circumstance-specific approach to deter-

mine whether an alien had been "convicted of . . . domestic

violence").

Like the provision at issue in Nijhawan, the moral turpitude

provisions have no analogue in federal or state criminal stat-

utes and "moral turpitude" is not an element of any offense.

In addition, the presence of the word "involving," like the

phrase "in which" at issue in Nijhawan, suggests a more indi-

PRUDENCIO v. HOLDER 31

vidualized approach.7 In sum, "[t]he need to decide whether

a crime is one of ‘moral turpitude’ does not have a parallel in

criminal cases," because "‘moral turpitude’ just isn’t relevant

to the criminal prosecution; it is not as if ‘turpitude’ were an

element of an offense." Ali, 521 F.3d at 741-42.8 In my view,

the phrase "crime involving moral turpitude" "cannot possibly

refer to a generic crime. . . . because there is no such generic

crime." Nijhawan, 129 S.Ct. at 2300-01.

In light of these factors, and with due regard for the level

of deference owed to the Attorney General in immigration

matters, I believe that immigration judges have "the discretion

to consider evidence beyond the charging papers and judg-

ment of conviction" in determining if an alien was convicted

of a crime involving moral turpitude, Ali, 521 F.3d at 743.

Therefore, I would defer to the Attorney General’s approach

in Silva-Trevino. See Mata-Guerrero v. Holder, 627 F.3d 256,

260 (7th Cir. 2010) (deferring to Silva-Trevino).

7

The majority concludes that the word "involving" does not create any

ambiguity in the statute because the entire phrase, "crime involving moral

turpitude" is a term of art. The phrase simply cannot be viewed with such

clarity. See Jordan v. De George, 341 U.S. 223, 235 (1951) (Jackson, J.,

dissenting) ("It is not one which has settled significance from being words

of art in the profession.")

8

For this reason, it is not practical for the majority to suggest that the

burden is somehow on federal and state criminal prosecutors to alleviate

the harshness of the majority’s result by "ensuring that these aspects

appear in the record of conviction." (Majority Op. at 15). Prosecutors have

a difficult enough job, and I do not believe we should add to their burden

by requiring that they ensure certain materials necessary for a civil pro-

ceeding that may (or may not) occur at some indeterminate point in the

future are included in the record of conviction for the convenience of a

court in another jurisdiction and another context. Instead, deferring to rea-

sonable agency procedures to find this needed information provides the

accepted and appropriate manner to address such situations.

32 PRUDENCIO v. HOLDER

III.

Applying Silva-Trevino to this case, I would deny Pruden-

cio’s petition for review. Prudencio pled guilty to one count

of violating Va. Code Ann. §18.2-371, which provides:

Any person 18 years of age or older, including the

parent of any child, who (i) willfully contributes to,

encourages, or causes any act, omission, or condition

which renders a child delinquent, in need of services,

in need of supervision, or abused or neglected as

defined in § 16.1-228, or (ii) engages in consensual

sexual intercourse with a child 15 or older not his

spouse, child, or grandchild, shall be guilty of a

Class 1 misdemeanor.

Subsection (ii) encompasses crimes involving moral turpi-

tude, while subsection (i) does not. The Government intro-

duced the following evidence to prove Prudencio’s

conviction: the police incident report; the warrant for carnal

knowledge, without force, of a 13-year-old child; and the

court form showing Prudencio’s guilty plea to contributing to

the delinquency of a minor. Nothing in these documents con-

clusively shows whether Prudencio pled guilty to subsection

(i) or (ii), so I believe the immigration judge was permitted to

advance to the third step of Silva-Trevino. Applying that step,

the police incident report serves as proof that Prudencio was

convicted of a crime involving moral turpitude: as a 20-year-

old he had sexual intercourse with a 13-year-old, infecting her

with a sexually transmitted disease. Prudencio’s crime is the

kind of "vile" or "depraved" act the moral turpitude provision

was enacted to address.

IV.

In sum, I disagree with the majority that the term "con-

victed" requires unyielding adherence to the categorical

approach to a provision that is not in the Armed Career Crimi-

PRUDENCIO v. HOLDER 33

nal Act and does not list a "generic" offense. Instead, I believe

the statute is silent as to what procedures an immigration

judge may use to determine if an alien was "convicted" of a

"crime involving moral turpitude," and I would defer to the

Attorney General’s approach in Silva-Trevino. In reaching a

contrary conclusion, I believe the majority has operated a sig-

nificant shift in the law by dictating to the executive branch’s

immigration judges how they may use their administrative

resources, and in turn ensuring that some immigrants whose

convictions were for crimes involving moral turpitude—like

Prudencio—remain in the country. It is difficult to believe

that Congress intended for courts to straitjacket immigration

courts with a doctrine based on concerns peculiar to the fed-

eral judiciary to enable individuals who infect underage girls

with sexually transmitted diseases to avoid removal by plead-

ing guilty to an overbroad statute that includes both crimes

involving moral turpitude and crimes that do not. For the fore-

going reasons, I respectfully dissent.