– guest blogging by Jenny Pelaez, Immigration Justice Clinic, Benjamin N Cardozo School of Law
We were on notice, following the BIA decisions in Gerstenshteyn and Babaisakov, that the Board was mission driven to erode the “categorical approach” as it applied to aggravated felony determinations. Who would have anticipated the sweeping new rule for moral turpitude determinations announced by former Attorney General Mukasey in Matter of Silva Trevino? We suppose we haven’t grown cynical enough and we state we were more than a bit surprised with the scope and breadth of the decision.With this left-field decision, the AG took away the one sure thing attorneys and judges have always been able to rely on when analyzing the immigration consequences of a crime: that we apply a categorical approach to determine whether the statute of conviction necessarily requires conduct that falls within the moral turpitude removal grounds.Indeed, the approach originated in ancient CIMT cases like US ex rel. Mylius v. Uhl, 210 F. 860 (2d Cir. 1914) decades before the modern Taylor-Shepard framework was born.
The system may not have been perfect, but over a century of case law had established its parameters and the sounds policies behind its use.Apparently struck with reformist zeal in his final days in office, Mukasey swept all of this aside and created a radical new three-step framework. Most significantly, at his new “step three,” the Attorney General directs IJs to consider any and all evidence “necessary and appropriate” to decide the moral turpitude question, eviscerating the core of the categorical approach.The Attorney General also distorts the initial categorical inquiry (“step one”) by defining the scope of criminal statutes not by reference to their text and elements but rather by reference solely to published case law that, as any practitioner knows, represent only the smallest fraction of actual prosecutions. Further, the Attorney General potentially purported to lay out a new definition for moral turpitude. While these rather esoteric and technical changes weren’t exactly making headlines in November ’08, it is hard to overstate the impact this decision could have on countless immigrants.
Immigrant advocates, although caught completely unawares–the AG had never told Mr. Silva-Trevino, let alone the broader legal community, why the case was certified–reacted swiftly.Several organizations submitted an amicus brief to the AG urging reconsideration of his decision because of the defective process behind the certification, its inconsistency with a century of uniform precedent, and the negative practical consequences Silva-Trevino will have on the functioning of immigration and criminal systems. Meanwhile, crim-imm gurus Norton Tooby and Dan Kesselbrenner issued a practice advisory to assist practitioners in navigating the newly-treacherous post-Silva-Trevino landscape.
The immigration bar hasn’t been alone in decrying Mukasey’s shoddy parting shot.The ABA affirmed the importance of the categorical approach and rejected the Silva-Trevino framework. In a 2009 report, the ABA praised the categorical approach as a tool that “promotes uniform treatment of convictions, fairness, and due process.”The ABA subsequently urged Attorney General Holder to withdraw Silva-Trevino, declaring that its “novel fact-based inquiry . . . offends due process, creates inefficiency, and undermines the uniform and predictable administration of justice in the immigration system.”The ABA reiterated these findings in a 2010 report, where it again recommended the withdrawal Silva-Trevino and a return to the categorical approach.
However, how the decision’s novel experiments for CIMT determinations will shake out in the circuits is still largely unknown.This is cause for hope, concern, and action.
As of this posting, no federal court has yet approved of or applied Silva-Trevino’s unprecedented moral turpitude framework.The Third Circuit, the only circuit court thus far to squarely address Silva-Trevino on the merits, emphatically rejected Mukasey’s interpretation as manifestly contrary to the text of the INA and affirmed the historically applied categorical approach in Jean-Louis v. Attorney General of U.S.The court refused to accord Chevron deference to the Attorney General’s decision, finding it patently unreasonable.While this was certainly a heartening decision that placed a lovely red flag on Silva-Trevino on Westlaw, there are still many more fights to come.The government has moved for a rehearing in Jean-Louis itself, thus threatening the important victory there.
From our recent survey of the rest of the field, it seems a number of circuits are continuing to apply the traditional framework rather than look beyond the record of conviction as instructed in the “third step” of the Silva-Trevino analysis.In Mustafaj v. Holder, the Second Circuit reaffirmed that it applies the categorical and modified categorical analyses for CIMT determinations. The case cites Silva-Trevino only with regard to the definition of moral turpitude. Similarly, in a somewhat confused passage, the Sixth Circuit in Kellermann v. Holder cited Silva-Trevino but opined that under the modified categorical approach, “the court conducts a limited examination of documents in the record to determine whether the particular offense for which the alien was convicted constitutes a CIMT”—i.e., the familiar modified categorical inquiry. In Marmolejo-Campos v. Holder, the Ninth Circuit expressly noted the tension between Silva-Trevino’s instruction to look beyond the record of conviction and its own prior circuit precedent requiring a more cabined inquiry. However, the court chose to reserve judgment on the conflict and continued to apply the traditional approach in the circuit. More recently, the Ninth Circuit also declined to expand the modified categorical inquiry beyond the record of conviction in Nunez v. Holder.All of this could signal an implicit disapproval of Silva-Trevino or a general preference for circuit precedent—or courts could be waiting for cases that more squarely present the deference issue before deciding where to come down.
While courts have been hesitant to adopt Silva-Trevino’s radical “step three” — holding that they should look to evidence beyond the record of conviction in making moral turpitude determinations — a number of courts have more readily applied Silva Trevino’s problematic “step one” approach — relying on published case law rather than statutory text to define the reach of a statute.In Destin v. U.S. Att’y Gen, the Eleventh Circuit called the Silva-Trevino “step one” approach “controlling.”However, the Ninth Circuit’s decision in United States v. Grisel suggests that the court is not applying Mukasey’s idiosyncratic “show me a case” analysis.There, the Ninth Circuit made clear that no reference to a particular case is necessary to establish a realistic probability where it is plain from the statutory text that an offense reaches non-turpitudinous conduct.
Another open question is how the circuits will apply the definition of moral turpitude articulated in Silva-Trevino, which requires “both reprehensible conduct and some degree of scienter, whether specific intent, deliberateness, willfulness, or recklessness.”Thus far, the Second (Mustafaj v. Holder), Sixth (Serrato-Soto v. Holder), and Ninth Circuits (Marmolejo-Campos v. Holder) have read Silva-Trevino as requiring scienter as an essential element of a CIMT—though this was generally understood as a requirement prior to Silva-Trevino as well. Whether Silva-Trevino will be understood to change the traditional requirement that reckless crimes include some aggravating dimension to be CIMTs remains to be seen.
The Ninth Circuit seems poised to consider the validity of the Silva-Trevino analysis.Oral argument is scheduled in mid-April for Castruita-Gomez v. Holder, 06-74582, which may present the issue.The court has asked parties to be prepared to discuss whether Silva-Trevino should have retroactive effect.In addition, several amici have submitted a brief in the Ninth Circuit in support of Petitioner in Zamudio-Ramirez v. Holder, No. 09-71083, a case which has clearly opened the can of worms that is Silva-Trevino’s step three. That brief, along with the resources listed throughout the above, should serve as great resource to advocates litigating Silva-Trevino issues.
The first step in containing the damage Silva-Trevino is causing is to find those cases where other courts will rule on whether or not to defer to the decision. No doubt OIL is using its resources to track these issues in the circuits, and immigrant advocates need to coordinate to do the same. Readers with a pending petition for review or who have experienced particularly problematic application of Silva-Trevino by the immigration courts, please contact the Immigration Justice Clinic at Cardozo Law School at email@example.com.