In a decision issued on October 18, 2012 the Court of Appeals for the Fifth Circuit opened the door to avoiding the Matter of Silva Trevino framework for analyzing whether a crime involves moral turpitude in cases arising in the Fifth Circuit.
In Matter of Silva Trevino, former Attorney General Mukasey issued a three-pronged framework for determining whether an offense qualifies as a crime involving moral turpitude. See 24 I. & N. Dec. 687 (A.G. 2008). The Board of Immigration Appeals (BIA or Board) has held that, absent otherwise controlling authority, Immigration Judges and the Board are bound to follow this framework. See Matter of Guevara-Alfaro, 25 I. & N. Dec. 417 (B.I.A. 2011).
The first prong of the Silva Trevino framework is a categorical approach; one must determine whether there is a reasonable probability that the criminal statute would be applied to reach conduct that does not involve moral turpitude. Id. at 697. To determine whether there is a realistic probability that the statute would be applied to reach non-turpitudinous conduct, one may point to a case from the applicable jurisdiction showing that prosecutions under the statute may be initiated against persons who engaged in non-turpitudinous conduct.
If the categorical inquiry does not resolve the issue then one may, under the second prong, apply the modified categorical approach. Under the modified categorical approach, one must consider whether the alien’s record of conviction evidences a crime that in fact involved moral turpitude. Id. at 690. The record of conviction includes such documents as the indictment, the judgment of conviction, jury instructions, a signed guilty plea and the plea transcript. Id. at 704.
Finally, if the modified categorical approach does not resolve the issue one may, under the third prong, consider any additional evidence deemed necessary or appropriate to resolve the moral turpitude question. Id. This evidence may include the police or arrest reports or any affidavits for the arrest warrant.
In Esparza-Rodriguez v. Holder, No. 11-60548 (Oct. 18, 2012) the Fifth Circuit did not accord Chevron deference to the Silva Trevino framework described above. Rather, the Fifth Circuit stated that it would only accord Chevron deference to the Board’s interpretation of the phrase “crime involving moral turpitude” as it appears in the Immigration and Nationality Act (INA or the Act). The Fifth Circuit made clear that it would defer to an entire methodological framework for determining whether a state offense qualifies as a crime involving moral turpitude. Id. at 4.
Rather, the Fifth Circuit applied its own, two-step approach to determine whether the alien’s offense qualified as crime involving moral turpitude. Under the first step, the Fifth Circuit applies a different version of the categorical approach; the Fifth Circuit assesses whether the minimum criminal conduct necessary to sustain a conviction under the statute necessarily reaches only offenses involving moral turpitude. Id. at 6. If that is the case, then the inquiry ends there. Id.
If the criminal statute has multiple subsections or an element phrased in the disjunctive, such that some violations of the statute would involve moral turpitude and others not, then the Fifth Circuit applies a modified categorical approach, where the record of conviction is examined to determine under which subsection the alien was convicted and which elements formed the basis for the conviction. Id. After identifying the elements of the particular crime of conviction, the Fifth Circuit inquires whether those elements, considered as a whole, constitute a crime involving moral turpitude. Id.
Notably, the Fifth Circuit noted in Esparza-Rodriguez that the third prong of the Silva Trevino approach is inconsistent with Fifth Circuit case law. Id. at pg. 6, n. 8.
What does all of this mean? It means that aliens with cases arising in the Fifth Circuit can argue that the Fifth Circuit framework, which is the preferable framework, governs and should be applied to their cases.
The Fifth Circuit methodology is preferred for several reasons. First, the minimum conduct test under the categorical approach is more workable than the realistic probability test. The realistic probability test requires that the alien point to a case from the applicable criminal jurisdiction to show that prosecutions under the statute may be initiated against persons who engaged in non-turpitudinous conduct. While reasonable in theory, this test is often unworkable when actually applied because many criminal statutes yield very little case law. Oftentimes a case cannot be found because of the little case law available construing the statute, not necessarily because the statute has not been applied to non-turpitudinous conduct.
Second, avoiding the third prong of the Silva Trevino approach is key. Under the third prong, one may consider evidence like police reports to determine whether an offense involves moral turpitude. Oftentimes these reports contain highly prejudicial information, that may or may not be reliable, about the circumstances of the alien’s arrest. Moreover, some highly prejudicial information in such reports does not actually relate to the statutory elements that must be proved to sustain a conviction under a given criminal statute.Sharing ...