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). This post will attempt to answer the question – when are the Immigration Courts allowed to look beyond the record of conviction to determine whether a conviction for simple assault is a CIMT?
EDIT: After the Fourth Circuit’s recent decision rejecting Silva-Trevino in Prudencio v. Holder, this approach is looking more and more vulnerable to attack. Check to see whether Silva-Trevino is still good law in your circuit. I discuss the Fourth Circuit decision here.
FURTHER 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.
Posted in Criminal Law, Immigration
Tagged BIA, Cancellation of Removal, Crime Involving Moral Turpitude, Criminal Immigration, Crimmigration, deportation, EOIR, Immigration, Immigration Court, removal, Removal Defence, Statutory Interpretation
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. Continue reading
Posted in Criminal Law, Immigration, News
Tagged Cancellation of Removal, CIMT, Crime Involving Moral Turpitude, Criminal Immigration, Crimmigration, deportation, EOIR, Inadmissibility, removal, Removal Defence, Statutory Interpretation
I have an upcoming merits hearing in the Baltimore Immigration Court for a Jehovah’s Witness seeking asylum from Eritrea. I plan to present an opening argument if the judge allows (not all do). For those unfamiliar with Immigration Court, these are bench trials in the nature of evidentiary hearings before an administrative judge. These hearings are usually just a few hours long, and there is a DHS ICE lawyer who will require the asylum-seeker to meet his or her burden of proof of eligibility. I am posting my draft opening argument because it illustrates many of the reasons I am so proud to participate in the asylum process. Asylum is truly an example of America’s greatness. It will be something like the following:
Posted in Immigration
Tagged Asylum, Baltimore, DC, EOIR, Eritrea, Immigration, Immigration Court, Jehovah's Witnesses, Maryland, Religious Persecution, Washington