April 01, 2015

Holder vacates 2008 Silva-Trevino opinion

U.S. Attorney General Eric H. Holder Jr. issued an order April 10 vacating the 2008 Justice Department opinion in Matter of Silva-Trevino, which was issued by then Attorney General Michael Mukasey and permitted an immigration judge, when ruling on the immigration consequences of criminal convictions, to consider evidence outside the formal record of a noncitizen’s conviction to determine if the conviction involved moral turpitude.

The ABA has been urging the attorney general for several years to withdraw the 2008 opinion, maintaining that it had “upended a century of precedent applying categorical analysis of convictions in immigration cases, including convictions for ‘crimes involving moral turpitude.’ ” The categorical approach requires 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. 

“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 re-litigate their criminal cases, which raises serious issues of procedural due process and fairness,” then ABA President James R. Silkenat wrote in a March 11, 2014, letter to Holder. Silkenat called the Mukasey opinion “ill-reasoned and pernicious.”

In February 2014, 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 (INA) “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 (Board) for further proceedings. In addition, recent Supreme Court decisions in Moncrieffe v. Holder, 113 S. Ct. 1678 (2013), and Descamps v. United States, 133 S. Ct. 2276 (2013) reaffirmed the categorical approach in criminal and immigration law.

“In view of the decisions of five courts of appeals rejecting the framework set out in Attorney General Mukasey’s opinion − which has created disagreement among the circuits and disuniformity in the Board’s application of immigration law – as well as intervening Supreme Court decisions that cast doubt on the continued validity of the opinion, I conclude that it is appropriate to vacate the November 7, 2008 opinion in its entirety,” Holder stated in his order.

Holder said that a “complete vacatur will enable the Board to develop a uniform standard for the proper construction and application of INA Section 212(a)(2) and similar provisions in light of all relevant precedents and arguments.”

He said the Board now may address the following issues:

• how adjudicators are to determine whether a particular criminal offense is a crime involving moral turpitude under the INA;

• when, and to what extent, adjudicators may use a modified categorical approach and consider a record of conviction in determining whether an alien has been convicted of . . . a crime involving moral turpitude” in applying INA Section 212(a) and similar provisions; and

• whether an alien who seeks a favorable exercise of discretion under the INA after having engaged in criminal acts constituting the sexual abuse of a minor should be required to make a heightened evidentiary showing of hardship or other factors that would warrant a favorable exercise of discretion.  

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