Silva-Trevino is dead; a win for immigration law.

On Friday, Attorney General Eric Holder vacated a hotly contested 2008 holding issued by AG Mukasey. Matter of Silva-Trevino, A013-014-303 (A.G. April 10, 2015).

AG Mukasey established a three part framework to evaluate whether a crime was a crime involving moral turpitude (CIMT). Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008). Moral turpitude is an archaic term with big consequences. It can be grounds for deportation or for denying adjustment of status (green card). Something very minor can be considered a CIMT (like shoplifting). What has been even more problematic is that with the old framework in Mukasey’s Silva-Trevino opinion, immigration judges were able to retry the criminal case because they were permitted to look beyond the record of conviction.

The record of conviction includes the plea colloquoy, the criminal docket, and transcripts of court proceedings. In looking beyond the record of conviction, immigration judges were able to look at records that would not be admissible in criminal court, such as police reports. The issue with that is that those are not admissible in criminal court because it violates the sixth amendment confrontation clause and thus, violates due process. In Immigration Court, which has often been referred to as a “kangaroo court,” the constitutional protections afforded to criminal proceedings simply do not apply.

Following the Silva-Trevino opinion, many circuit courts rejected this overreaching and the U.S. Supreme Court treated it infavorably. Since immigration is governed by federal law, the catalyst for Holder’s opinion vacating the previous framework was the lack of uniformity.

So what now? AG Holder advised that the determinations about whether a crime is categorical involving moral turpitude still stand. It is up to the Board of Immigration Appeals to determine whether to clarify, vacate, or uphold those decisions, but now we are in analytical blackhole. It is likely that judges will use the pre-Silva Trevino framework to analyze whether a crime is one that involves moral turpitude. In doing so, at least for the time being, this means that immigration judges will be limited to the records of conviction. I hope that the BIA acts swiftly to resolve ambiguities.

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