Former Attorney General Mukasey’s last minute fuck you to the immigrant community is looking like it might be against the ropes. As discussed in a previous post, in Silva-Trevino, ex-Attorney General Mukasey attempted to drastically revise nearly a century of jurisprudence governing the analysis used to determine whether a particular conviction constitutes a crime involving moral turpitude (CIMT).
Today, the 4th Circuit becomes the fourth circuit court to reject Silva-Trevino. In Prudencio v. Holder, the 4th Circuit held that ex-AG Mukasey’s decision was not entitled to Chevron deference because there was no ambiguity in the statute, that indeed, any ambiguity was of Mukasey’s own making. The author of the opinion, Judge Keenan, a fairly recent Obama appointee, had some pretty choice words for Mukasey’s linguistic gymnastics.
For example, Judge Keenan takes issue with Mukasey’s redefinition of “conviction”:
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.
Judge Keenan also agreed with the Third Circuit that the word “involving” would not authorize the fishing expeditions Mukasey instituted.
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 violence.”
To date, the only circuit to approve of the Silva-Trevino 3-step modification remains 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) . This latest decision is huge, and a hopeful sign that other circuits will also reject the anti-immigrant approach set out in Silva-Trevino.
EDIT – IMPORTANT: The Supreme Court’s June 2013 decision in Descamps v. US clarified when the modified-categorical approach is to be used for determining whether a crime is a crime of violence. This has completely changed the Fourth Circuit’s analysis of whether simple assault type crimes will be a crime of violence (and therefore a CIMT). See US v. Royal (4th Cir., Oct. 2013). I imagine that the situation is changing quickly in other circuits as well.