11th Circuit Rejects Silva-Trevino Framework for Looking Beyond Record of Conviction in Immigration Cases

Today, the Eleventh Circuit became the latest US Court of Appeals to reject the new Silva-Trevino method for determining whether a crime involves moral turpitude (CIMT).  Silva-Trevino was former Attorney-General Mukasey’s parting shot at immigrants, and it was a doozy.  In Silva-Trevino, AG Mukasey made huge changes to the analysis used to determine whether a particular conviction constitutes a crime involving moral turpitude (CIMT) under the guise of  creating a national standard to resolve what he perceived as an ambiguous statute.  In Sanchez Fajardo, the 11th Circuit held that ex-AG Mukasey’s decision was not entitled to Chevron deference because there was no ambiguity. In Silva-Trevino, AG Mukasey upset decades of decisions that said that Immigration Courts should look first to the statute of conviction to determine whether the crime was “categorically” a CIMT or not.  If the statute could cover criminal acts that were CIMT and those that were not, the courts would then look at the record of conviction to determine whether the conviction was for a CIMT (the “modified-categorical approach”).  In Silva-Trevino, ex-AG added a third step to allow immigration courts to look outside the record to determine whether the acts constituted a CIMT:

In short, to determine whether an alien’s prior conviction triggers application of the Act’s moral turpitude provisions, adjudicators should: (1) look first to the statute of conviction under the categorical inquiry set forth in this opinion and recently applied by the Supreme Court in Duenas-Alvarez; (2) if the categorical inquiry does not resolve the question, look to the alien’s record of conviction, including documents such as the indictment, the judgment of conviction, jury instructions, a signed guilty plea, and the plea transcript; and (3) if the record of conviction does not resolve the inquiry, consider any additional evidence the adjudicator determines is necessary or appropriate to resolve accurately the moral turpitude question.

This has proven problematic in practice.   Immigration courts often have no way to determine whether it should stop its inquiry at the second step looking at the record.  Writing for the 11th Circuit, Judge Rosemary Barkett sided with the 3rd Circuit and held that  any “ambiguity that the Attorney General perceives in the INA is an ambiguity of his own making, not grounded in the text of the statute.”  (quoting Jean-Louis v. Attorney General, 582 F.3d 462 (3d Cir. 2009).  Judge Barkett noted that

courts have generally not found any ambiguity in provisions in the INA and earlier immigration statutes premising an alien’s removability on the existence of a “conviction” for a particular type of crime. Instead, courts have consistently held that Congress’s use of the term “conviction,” which the INA defines as “a formal judgment of guilt,” 8 U.S.C. § 1101(a)(48)(A), demonstrated its intent to require adjudicators to apply the categorical and modified categorical approach

The court recounted many decades of decisions, some pre-dating the Immigration and Nationality Act (INA), to show that there was wide agreement that the CIMT analysis should rely on the categorical and modified-categorical approaches.  Because Congress was presumed to be aware of this history when it enacted the INA, it was presumed to approve of these approaches when speaking of CIMTs.  To date, the only circuit to approve of the Silva-Trevino 3-step modification is the 7th Circuit, which had established its own similar analysis just prior to Silva-Trevino in Ali v. Mukasey, 521 F.3d 737, 739 (7th Cir. 2008) .  Hopefully, other circuits will similarly reject the anti-immigrant approach set out in Silva-Trevino.

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