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Interim Decision #3705

Matter of Samuel Esaul GUEVARA ALFARO, Respondent

Decided February 23, 2011

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1)

Any intentional sexual conduct by an adult with a child involves moral turpitude,

as long as the perpetrator knew or should have known that the victim was under the

age of 16. Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), followed.

Quintero-Salazar v. Keisler, 506 F.3d 688 (9th Cir. 2007), not followed.

(2) Absent otherwise controlling authority, Immigration Judges and the Board

of Immigration Appeals are bound to apply all three steps of the procedural framework

set forth by the Attorney General in Matter of Silva-Trevino for determining whether

a particular offense constitutes a crime involving moral turpitude.

FOR RESPONDENT: Pro se1

FOR THE DEPARTMENT OF HOMELAND SECURITY: Kim B. Wong, Assistant Chief

Counsel

BEFORE: Board Panel: PAULEY, GREER, and WENDTLAND, Board Members.

WENDTLAND, Board Member:

In a decision dated April 27, 2010, an Immigration Judge terminated the

removal proceedings against the respondent. The Department of Homeland

Security (“DHS”) has appealed from that decision. The appeal will

be sustained, the proceedings will be reinstated, and the record will

be remanded for further proceedings.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of El Salvador who adjusted his status

to that of a lawful permanent resident on October 1, 1997. On March 11,

2005, the respondent was convicted of using a minor to violate a controlled

substance law in violation of section 11380(a) of the California Health and

Safety Code. On the same day, he was also convicted of engaging in unlawful

1

On January 21, 2011, counsel for the respondent, Bernadette W. Connolly, Esquire, filed

a motion to withdraw from the case. The motion is granted.

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sexual intercourse with a minor (statutory rape) in violation of section 261.5(d)

of the California Penal Code, which provides that a person 21 years of age

or older who engages in an act of unlawful sexual intercourse with a minor

under 16 years of age is guilty of the offense. In addition, the respondent was

convicted on or about January 23, 2002, of petty theft in violation of sections

484 and 488 of the California Penal Code.

The DHS initiated removal proceedings on October 31, 2007, charging

that the respondent was removable under section 237(a)(2)(A)(iii) of the

Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2006),

because he had been convicted of two aggravated felonies after admission

to the United States. First, the DHS alleged that the respondent’s conviction

under section 11380(a) of the California Health and Safety Code amounted

to illicit trafficking in a controlled substance, which was an aggravated felony

under section 101(a)(43)(B) of the Act, 8 U.S.C. § 1101(a)(43)(B) (2006).

The DHS also alleged that the respondent’s conviction under section 261.5(d)

of the California Penal Code involved sexual abuse of a minor, which

is an aggravated felony under section 101(a)(43)(A). On October 24, 2008,

the DHS lodged an additional charge under section 237(a)(2)(B)(i) of the Act,

contending that the respondent’s conviction under section 11380(a) was for

a controlled substance violation.

In a decision dated March 20, 2009, the Immigration Judge found that the

respondent was not removable on the basis of the drug-trafficking aggravated

felony charge, but he did sustain the charge under section 237(a)(2)(B)(i)

of the Act, holding that the respondent was convicted of a controlled substance

violation. The Immigration Judge also found the respondent removable

as an aggravated felon pursuant to section 101(a)(43)(A) of the Act, ruling that

he was an alien convicted of an offense involving sexual abuse of a minor.

Relying in at least some part on this determination that the respondent had

been convicted of an aggravated felony, the Immigration Judge further found

that the respondent had not demonstrated eligibility for any form of relief from

removal.

In a decision dated December 28, 2009, we addressed the respondent’s

appeal from the Immigration Judge’s decision. The DHS did not contest the

Immigration Judge’s holding in regard to the drug-trafficking aggravated

felony charge, so we made no determination on that issue. However,

we reversed the Immigration Judge’s finding of removability under section

237(a)(2)(B)(i) of the Act, because California controls the possession and sale

of at least one substance not regulated by Federal law under the Controlled

Substances Act and the record of conviction did not reveal the drug involved

in the respondent’s crime. We also noted that the United States Court

of Appeals for the Ninth Circuit had recently held that the offense of “unlawful

sexual intercourse with a minor” under section 261.5(d) of the California Penal

Code is not categorically an aggravated felony involving sexual abuse

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Interim Decision #3705

of a minor. Pelayo-Garcia v. Holder, 589 F.3d 1010, 1011, 1016 (9th Cir.

2009). We therefore remanded the record for the Immigration Judge

to consider whether the respondent’s conviction for statutory rape constituted

an aggravated felony conviction under the modified categorical approach.

On remand, the DHS withdrew the sexual abuse of a minor aggravated

felony charge. On March 18, 2010, the DHS added a factual allegation

relating to the respondent’s petty theft conviction from January 2002 and

lodged an additional charge that the respondent was removable under section

237(a)(2)(A)(ii) of the Act as an alien convicted of two crimes involving moral

turpitude. The respondent conceded that his petty theft conviction was for

a crime involving moral turpitude. However, he argued that pursuant

to Quintero-Salazar v. Keisler, 506 F.3d 688 (9th Cir. 2007), his conviction

under section 261.5(d) of the California Penal Code was not. In response,

the DHS relied on Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir.

2009) (en banc), to assert that the Immigration Judge should not defer

to Quintero-Salazar and should apply instead the Attorney General’s decision

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

In his April 27, 2010, decision, the Immigration Judge rejected the

DHS’s argument, concluding that he was bound to find that the respondent’s

statutory rape conviction is not for a crime involving moral turpitude under

Quintero-Salazar. Moreover, the Immigration Judge found that, even

assuming the DHS were correct, the record does not establish that the

respondent’s offense is a crime involving moral turpitude under the first two

steps of the three-step procedural framework set forth in Silva-Trevino, i.e., the

categorical and modified categorical approaches. The Immigration Judge

therefore terminated the proceedings and the DHS has appealed. The parties

have essentially reiterated their arguments on appeal.

II. ISSUES

In this case, we must decide whether to follow the Attorney General’s

substantive determination in Matter of Silva-Trevino that a statutory

rape offense involving a minor under age 16 is a crime involving

moral turpitude, notwithstanding the Ninth Circuit’s contrary decision

in Quintero-Salazar. Further, we must determine whether to apply

Silva-Trevino’s separate holding that establishes a procedural framework for

assessing whether an offense constitutes a crime involving moral turpitude,

because the substantive holding with regard to statutory rape offenses in that

decision is limited to cases in which the defendant knew or should have known

the victim’s age, and the question whether the respondent’s case meets

that criterion can be determined only upon application of the third step

of Silva-Trevino’s procedural framework. We review these questions of law

de novo. See 8 C.F.R. § 1003.1(d)(3)(ii) (2010).

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We resolve the first issue by holding that since the Ninth Circuit

has acknowledged that the phrase “crime involving moral turpitude”

is quintessentially ambiguous, the Attorney General’s interpretation of the

term must take precedence over that of the Ninth Circuit. See Nat’l Cable

& Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980-82 (2005);

Marmolejo-Campos v. Holder, 558 F.3d at 909. We resolve the second

issue by holding that in the absence of otherwise controlling authority,

Immigration Judges and the Board are bound to apply all three steps of the

procedural framework set forth in Silva-Trevino.

III. ANALYSIS

The United States Supreme Court has held that a circuit court must

accord deference under Chevron, U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984), to an agency’s interpretation of a statute,

regardless of the circuit court’s contrary precedent, provided that the court’s

earlier precedent was an interpretation of a statutory ambiguity. Nat’l

Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. at 980-82.

The Ninth Circuit has described the phrase “crime involving moral turpitude”

as quintessentially ambiguous and thus found it appropriate to accord Chevron

deference to the Board’s determinations whether a particular offense falls

within the definition of that term. Marmolejo-Campos v. Holder, 558 F.3d

at 909-12.

In Quintero-Salazar v. Keisler, 506 F.3d at 692-94, the Ninth Circuit

addressed the question whether statutory rape in violation of section 261.5(d)

of the California Penal Code necessarily involves moral turpitude. The

court discussed the example of a 21-year-old perpetrator having consensual

intercourse with a 15-year-old and found that this offense could be malum

prohibitum (as opposed to malum in se) in at least some cases, because the

adult and minor could be married. Id. at 693-94. The court also noted that

such conduct could be legal in States with statutes prohibiting sexual contact

with a person who is 14 years of age or younger. Id. at 693. Therefore, the

court held that under the categorical approach, a violation of section 261.5(d)

of the California Penal Code is not a crime involving moral turpitude.2

The Attorney General’s decision in Silva-Trevino has both a procedural and

substantive aspect. Regarding the latter, the Attorney General stated that any

2

In a decision subsequent to Quintero-Salazar, however, the Ninth Circuit employed

a somewhat different analysis, acknowledging that some malum prohibitum offenses,

including statutory rape, may involve moral turpitude. See Nicanor-Romero v. Mukasey,

523 F.3d 992, 998-1002 (9th Cir. 2008), overruled on other grounds by Marmolejo-Campos,

558 F.3d at 911.

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Interim Decision #3705

intentional sexual conduct by an adult with a child involves moral turpitude,

as long as the perpetrator knew or should have known that the victim was

a minor. Matter of Silva-Trevino, 24 I&N Dec. at 705-07. Furthermore,

in discussing mistake-of-age defenses, the Attorney General referred

to victims under the age of 16, suggesting that victims younger than 16 must

be viewed as “children.” See id. at 707.3 Since the Ninth Circuit’s ruling

in Quintero-Salazar represents an interpretation of a statutory ambiguity, see

Marmolejo-Campos v. Holder, 558 F.3d at 909-12, we hold that the Attorney

General’s substantive ruling in Silva-Trevino is binding in this case and must

be applied in lieu of Quintero-Salazar to the extent that the two cases conflict.

See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S.

at 980-82.

Regarding the procedural aspect of Silva-Trevino, the Attorney General

established a three-part framework for determining whether a particular

offense constitutes a crime involving moral turpitude. First, a categorical

approach must be employed under which the criminal statute at issue

is examined to ascertain whether moral turpitude is intrinsic to all offenses

that have a “realistic probability” of being prosecuted under that statute.

Matter of Silva-Trevino, 24 I&N Dec. at 689-90, 696-97; see also Matter

of Louissaint, 24 I&N Dec. 754 (BIA 2009) (applying the approach set forth

in Silva-Trevino for determining if a particular crime involves moral turpitude,

which includes both the traditional categorical analysis of the elements

of a statute and an inquiry into whether there is a “realistic probability” that the

statute under which the alien was convicted would be applied to reach conduct

that does not involve moral turpitude). See generally Gonzales v. Duenas

Alvarez, 549 U.S. 183 (2007) (applying the traditional categorical analysis

of statutory elements).

Second, if the issue cannot be resolved under the categorical approach,

a modified categorical approach should be undertaken, which requires

inspection of specific documents comprising the alien’s record of conviction

(such as the indictment, the judgment of conviction, jury instructions, a signed

guilty plea, or the plea transcript) to discern the nature of the underlying

3

We observe that the Third Circuit appears to share the Attorney General’s view that moral

turpitude inheres in sex offenses involving minors under the age of 16. See Mehboob v. Att’y

Gen. of U.S., 549 F.3d 272 (3d Cir. 2008) (affirming the determination that moral turpitude

inheres in the Pennsylvania offense of misdemeanor indecent assault, consisting of sexual

contact with a person under 16 years of age, where the perpetrator is at least 4 years older

than the complainant). Indeed, in that decision, the Third Circuit found that the alien’s

offense involved moral turpitude, notwithstanding the lack of any mens rea requirement with

respect to the age of the victim; the court also discerned a judicial “consensus” that “moral

turpitude inheres in strict liability sex offenses.” Id. at 278 (citing decisions of both the

circuit courts and the Board).

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conviction. Matter of Silva-Trevino, 24 I&N Dec. at 690, 698-99. Finally,

if the record of conviction is inconclusive, the Attorney General has held that

because moral turpitude is not an element of the crime, probative evidence

beyond the record of conviction (such as an admission by the alien

or testimony before the Immigration Judge) may be considered when

evaluating whether an alien’s offense constitutes a crime involving moral

turpitude. Id. at 690, 699-704, 709.

In Marmolejo-Campos v. Holder, 558 F.3d at 907 n.6, the Ninth Circuit

acknowledged the Attorney General’s adoption of this approach but declined

to address its validity. More recently, however, the court called attention to

the Silva-Trevino framework in a decision holding that a misdemeanor

conviction for false imprisonment in violation of section 236 of the California

Penal Code was not a conviction for a crime involving moral turpitude under

the categorical approach. Saavedra-Figueroa v. Holder, 625 F.3d 621, 626

(9th Cir. 2010) (citing Morales-Garcia v. Holder, 567 F.3d 1058, 1062 & n.2

(9th Cir. 2009) (summarizing the application of the categorical approach

in determining whether a crime involves moral turpitude)).

In Saavedra-Figueroa, the Ninth Circuit first noted that under the

administrative framework in Silva-Trevino, an offense must involve

reprehensible conduct and some degree of scienter to qualify as a crime

involving moral turpitude. Id. at 627 (citing Matter of Silva-Trevino, 24 I&N

Dec. at 689 n.1). The court found that section 236 did not require any degree

of scienter. It then stated that for an offense to be categorically broader than

the definition of a crime involving moral turpitude under the first step

of Silva-Trevino, there must “be a ‘reasonable probability . . .’ that the statute

of conviction will be applied to non-morally turpitudinous conduct” and noted

California case law that demonstrated such a “reasonable probability”

regarding the application of section 236. Id. at 627-28 (citing People

v. Agnew, 107 P.2d 601 (Cal. 1940)). The court therefore concluded that

a violation of section 236 did not qualify as a categorical crime involving

moral turpitude under the first step of Silva-Trevino, but it did not then discuss

the remaining two steps set forth by the Attorney General in that case.4

4

Discussing the modified categorical approach outside the context of Silva-Trevino, the

court apparently withheld ruling on whether that approach could be applied in light of its

earlier determination that misdemeanor false imprisonment is not categorically a crime

involving moral turpitude because it lacks an element of the generic offense, i.e., an intent

to harm. Saavedra-Figueroa v. Holder, 625 F.3d at 628 (citing Navarro-Lopez v. Gonzales,

503 F.3d 1063, 1073 (9th Cir. 2007) (en banc) (indicating that the modified categorical

approach is not applicable when the crime of conviction is missing an element of the generic

crime)). However, the court stated that even if the modified categorical approach were

applied, it would make no difference, because the record contained insufficient evidence

(continued...)

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Thus, Saavedra-Figueroa did not repudiate the three-part procedural

framework of Silva-Trevino; nor has any other decision of the Ninth Circuit

of which we are aware. Furthermore, the Seventh Circuit has issued a decision

that expressly deferred to the methodology for assessing crimes involving

moral turpitude in Silva-Trevino, observing that the Attorney General’s

determination on such a question of law is “controlling” under section

103(a)(1) of the Act, 8 U.S.C. § 1103(a)(1) (2006). Mata-Guerrero v. Holder,

627 F.3d 256 (7th Cir. 2010). Significantly, the Seventh Circuit noted the

Attorney General’s statement regarding the third step in Silva-Trevino that

“[a]llowing for inquiry beyond the record of conviction would result in more

accurate determinations of who falls within the scope of the statute, . . . would

better accord with the statute’s demands for individualized adjudications,” and

would “produce more uniform results nationwide.” Id. at 261-62 (quoting

Matter of Silva-Trevino, 24 I&N Dec. at 702) (internal quotation marks

omitted).5

Immigration Judges and the Board are delegates of the Attorney General,

and we are bound to apply the methodology mandated by Silva-Trevino,

absent otherwise controlling authority. Since the Ninth Circuit, in whose

jurisdiction this case arises, has not rejected Silva-Trevino, we will follow the

approach set forth in the Attorney General’s opinion.

Applying Matter of Silva-Trevino to this case, we must first analyze

section 261.5(d) of the California Penal Code under the categorical approach.

As noted above, that section provides as follows:

Any person 21 years of age or older who engages in an act of unlawful sexual

intercourse with a minor who is under 16 years of age is guilty of either

a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not

exceeding one year, or by imprisonment in the state prison for two, three, or four

years.

(...continued)

of the factual allegations underlying the alien’s conviction to conclude that his conviction

was based on a judicial determination of facts that fall within the Federal generic definition

of moral turpitude. Id. A subsequent discussion of the modified categorical approach, which

occurred in the context of addressing the Government’s request for an unrestricted remand

to the Board to introduce new evidence, also did not mention Silva-Trevino. Id.

We therefore do not construe as a repudiation of Silva-Trevino the court’s statement that

“Saavedra-Figueroa’s convictions cannot support the BIA’s finding of removability under

either the categorical approach or modified-categorical approach.” Id.

5

We acknowledge that the Third Circuit has disagreed with the procedural analysis set forth

in Silva-Trevino, holding that it is not entitled to judicial deference. Jean-Louis v. Att’y Gen.

of U.S., 582 F.3d 462 (3d Cir. 2009). In addition, the Eighth Circuit has stated that to the

extent Silva-Trevino is inconsistent with circuit precedent, the court is bound by and will

adhere to circuit law. Guardado-Garcia v. Holder, 615 F.3d 900, 902 (8th Cir. 2010).

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Since the statute does not require a perpetrator to have engaged

in intentional sexual contact with someone he or she knew or should have

known to be a child, there is a realistic probability it could be applied

to conduct that does not involve moral turpitude. See Matter of Silva-Trevino,

24 I&N Dec. at 705-07. The offense prohibited by section 261.5(d)

is therefore not a categorical crime involving moral turpitude under the first

step of Silva-Trevino. Applying the second step, we find that there are

no documents in the record of conviction establishing that the respondent knew

or should have known that his victim was a child.6 Thus, the only remaining

step of Silva-Trevino is the third, which provides for consideration of probative

evidence beyond the record of conviction.

In the proceedings before the Immigration Judge, the respondent did not

deny knowledge of his victim’s age. In fact, during a hearing on December 11,

2008, he testified that he was 21 years old at the time of the offense, that his

victim was a friend of his younger brother, and that he knew at the time that

she was 15 years old. He further testified that he stayed with the victim for

approximately 3 to 4 days, during which period he had sexual intercourse with

her and gave her marijuana, and that he then made up a story for her to tell the

police.

While these admissions seem to indicate that the respondent engaged

in turpitudinous conduct, the Board generally lacks the authority to make

findings of fact in the course of deciding appeals. 8 C.F.R. § 1003.1(d)(3)(iv).

Accordingly, we will remand the record for the Immigration Judge to make

specific factual findings regarding whether the respondent knew or should

have known that his victim was a minor, taking into consideration the

respondent’s prior testimony before the Immigration Court and any other

relevant evidence.7 The Immigration Judge should then apply the third step

of Silva-Trevino in deciding whether the DHS has satisfied its burden

6

A Register of Actions of the convicting court, which is included in the record

of proceedings, shows that on March 11, 2005, the respondent plead nolo contendere

to count 4 of the information. The information, which is also part of the record, alleged that

between November 1, 2004, and November 11, 2004, the respondent “did willfully and

unlawfully have or accomplish an act of sexual intercourse with a minor under the age of 16,

not the spouse of said defendant, and said defendant being 21 years of age or older,

in violation of Penal Code section 261.5(d), a felony.” While this language establishes that

the victim was a child, it does not demonstrate that the respondent knew or should have

known this fact.

7

Although the Immigration Judge did make some findings of fact regarding the respondent’s

offense in his March 20, 2009, decision, he did not make a specific finding as to whether the

respondent knew or should have known the victim’s age at the time of his offense.

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of proving the respondent’s removability under section 237(a)(2)(A)(ii) of the

Act. See 8 C.F.R. § 1240.8(a) (2010). Finally, if the charge is sustained, the

Immigration Judge should permit the respondent to apply for any relief from

removal for which he may be eligible.

Accordingly, the DHS’s appeal will be sustained and the record will

be remanded.

ORDER: The appeal of the Department of Homeland Security is sustained,

the April 27, 2010, decision of the Immigration Judge is vacated, and the

proceedings against the respondent are reinstated.

FURTHER ORDER: The record is remanded to the Immigration Judge

for further proceedings consistent with the foregoing opinion and for the entry

of a new decision.

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