Written by: JMcKinney

Two months before leaving office, President George W. Bush’s Attorney General, Michael Mukasey, issued a landmark immigration decision overturning a century of jurisprudence regarding the analysis of criminal convictions for immigration consequences.  In a nutshell, the decision states that to determine whether a crime is a “crime involving moral turpitude” (CIMT), first an Immigration Judge looks to the elements of the offense and asks whether the crime categorically involves moral turpitude or not (the inquiry ended there for most of the last century).  If there is a “realistic probability” that the prohibited act sometimes does and sometimes does not involve moral turpitude, then the Court can look to the record of conviction to see if the specific case involves moral turpitude.  If the record of conviction does not yield an answer, the Court may consider evidence outside the record of conviction.  Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008).  The BIA quickly illustrated that while DHS has the ability to attach removal consequences in three different ways (if step 1 doesn’t work, try step 2; if step 2 doesn’t work, try step 3), the noncitizen in removal proceeding does not share the ability to detach immigration consequences based on the underlying circumstances of the conviction.  See, e.g., Matter of Louissaint, 24 I. & N. Dec. 754 (BIA 2009).

As the AILA Amicus Committee reported last year, “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.”

To date, Attorney General Holder has been silent on this issue.  The administrative board he oversees, the BIA, continues to apply Silva-Trevino with vigor.  Most recently, the Board issued a precedent decision with the following headnote:

Absent otherwise controlling authority, Immigration Judges and the Board of Immigration Appeals are bound to apply all three steps of the procedural framework set forth by the Attorney General in Matter of Silva-Trevino for determining whether a particular offense constitutes a crime involving moral turpitude.

Matter of Guevara Alfaro, 25 I. & N. Dec. 417 (BIA 2011) (emphasis added).  Reading the headnote in isolation, one could conclude that every case addressing whether an offense is a CIMT now requires a “mini-trial” since step 3 (allowing the IJ to consider any evidence) swallows steps 1 and 2 of the inquiry.  Such a reading, however, contradicts the AG’s own words.  Silva-Trevino, 24 I&N Dec. at 703 (“allowing inquiry beyond the record of conviction does not mean that the parties would be free to present ‘any and all evidence bearing on an alien’s conduct leading to the conviction.’ … In many, if not most, cases, the judge will not have to go beyond the record of conviction, which includes the transcript of any plea.”).

Unfortunately, this flawed headnote reading is already at play in Immigration Courts.  For example, an Atlanta Immigration Judge had terminated proceedings in a case presenting the question whether Georgia’s public indecency statute was a CIMT.  The IJ had terminated proceedings, finding that Georgia’s public indecency statute was not categorically a CIMT (Matter of Mueller, 11 I&N Dec. 268 (BIA 1965)), and the conviction record failed to evidence a lewd or evil intent.  DHS filed a Motion for Reconsideration.  Guevara Alfaro was released while the DHS motion was pending, and DHS immediately notified the IJ of the BIA decision.  The IJ denied DHS’s Motion for Reconsideration, but, in doing so, applied all three steps of Silva-Trevino.  This exercise prolonged the respondent’s detention for several more weeks.

Understanding Guevara Alfaro requires reading beyond the headnote.  The specific question before the Board was whether “the substantive holding with regard to statutory rape offenses in [Silva Trevino] is limited to cases in which the defendant knew or should have known the victim’s age, and the question whether the respondent’s case meets that criterion can be determined only upon application of the third step of Silva-Trevino’s procedural framework.”  Id. at 419.  The Board concluded in determining whether an “indecency with a child” conviction was a CIMT, an additional inquiry would have to be made to determine whether respondent knew or should have known the age of the victim.  This does not mean that such an additional inquiry would be necessary in “many, if not most” cases.  The Guevara Alfaro headnote, however, does not make any such limitation.  The application of this case is just the latest example of “circumstance-specific” analysis run amuck.

Prior to Silva-Trevino, we have a century of jurisprudence that gives prosecutors, criminal defendants and their attorneys general guidance as to what is and what is not a CIMT, in an age where “deportation is an integral part—indeed, sometimes the most important part—of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.”  Padilla v. Kentucky, 130 S. Ct. 1473 (2010).  We have a century of jurisprudence which promotes the uniform application of the law to similar convictions (regardless of disparate underlying facts).  We have a century of jurisprudence that promotes the efficient adjudication of removal matters.  Silva-Trevino and its progeny turn these principles on their head.

Our current Attorney General needs to hit the “reset” button and get us back to established precedent – which is just in its sheer simplicity — “Neither the immigration officials, nor we, may consider the circumstances under which the crime was in fact committed. When by its definition it does not necessarily involve moral turpitude, the alien cannot be deported because in the particular instance his conduct was immoral. Conversely, when it does, no evidence is competent that he was in fact blameless.” United States ex rel. Robinson v. Day, 51 F.2d 1022, 1023 (2nd Cir. 1931) (L. Hand, J.).

Mr. Holder, where art thou?