ABA urges withdrawal of 2008 immigration opinion

The ABA is urging U.S. Attorney General Eric H. Holder Jr. to withdraw what the ABA calls an “ill-reasoned and pernicious” Justice Department opinion issued in 2008 in Matter of Silva-Trevino that permits an immigration judge to consider evidence outside the record of a noncitizen’s conviction when determining immigration consequences of criminal convictions.

In a March 11 letter to Holder, ABA President James R. Silkenat said the opinion, issued by former Attorney General Michael Mukasey, “upended a century of precedent applying categorical analysis of convictions in immigration cases, including convictions for “crimes involving moral turpitude.” The categorical approach permits immigration adjudicators to rely solely on the legal interpretation of the criminal statute and what was determined in the criminal court proceeding, thereby avoiding any relitigation of the underlying conduct. 

The Mukasey opinion provided that there can be a new adjudication by the immigration courts of the facts beyond what was established in the criminal case to determine the immigration classification of an offense.

In February, the U.S. Court of Appeals for the Fifth Circuit became the fifth federal court of appeals to reject the 2008 opinion and conclude that the Immigration and Nationality Act “unambiguously forbids fact-finding beyond the record of conviction to determine if an immigrant is removable based upon a conviction for a crime involving moral turpitude.” The Fifth Circuit ruling, issued in Silva-Trevino v. Holder, remanded the case to the Board of Immigration Appeals for further proceedings. Silkenat emphasized that the time is appropriate to withdraw the 2008 opinion in light of the Fifth Circuit opinion and recent Supreme Court precedent reaffirming the categorical approach in criminal and immigration law − Moncrieffe v. Holder, 113 S. Ct. 1678 (2013), and Descamps v. United States, 133 S. Ct. 2276 (2013).

 “Allowing immigration adjudicators to determine the nature of a conviction by investigating facts that were never a necessary part of the criminal proceedings forces noncitizens to relitigate their criminal cases, which raises serious issues of procedural due process and fairness,” Silkenat said.

He explained that factual inquiry could occur years or decades after the original conviction, when evidence is gone and memories have faded, making the inquiry particularly unreliable. In addition, the predictability provided by the categorical approach, where noncitizens convicted under identical provisions of law face the same immigration consequences, is essential to the operation of the criminal courts.

Withdrawing the 2008 opinion “would correct a decision that has impaired the fair administration of justice in the immigration courts and agencies for almost six years and would restore uniformity, predictability, and fairness to this important area of the law,” Silkenat concluded. 


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