Please Note: This post was published in May 2015 and may not contain current information.
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The U.S. Court of Appeals for the Fifth Circuit joined four other circuit courts in holding that immigration judges and the Board of Immigration Appeals may not look beyond the record of an alien’s conviction to determine whether that conviction constitutes a crime involving moral turpitude (CIMT).
See The January 31, 2014 panel decision. Functionally, what the decision means is that immigration adjudicators will be limited to examining only the statute of conviction (an analysis known as the “categorical inquiry”) and, if necessary, a limited set of court documents constituting the alien’s “record of conviction,” (the “modified categorical inquiry”) to determine the nature of an alien respondent’s offense.
The decision ensures that the determination of whether an alien’s conviction constitutes a CIMT can only be made based on conduct for which the alien was actually convicted. The ruling excludes from consideration things like police reports, witness affidavits, oral testimony, and other documents which may contain allegations of unsavory conduct for which the alien was never convicted.
The Fifth’s ruling strikes down what has come to be known as the Silva-Trevino “third step”
For at least a century courts have used what is known as the “categorical inquiry” to determine whether an alien has been “convicted of” a particular type of offense, such as a CIMT.
However, in 2008, then Attorney General of the United States Alberto Gonzales certified to himself the Board of Immigration Appeals’ decision in Matter of Silva-Trevino, which had determined under the categorical analysis that the respondent’s offense was not a CIMT. In an unprecedented expansion of executive authority, the Attorney General overruled the Board’s earlier decision and determined that immigration judges and the Board were authorized, when necessary, to look beyond the statute and record of conviction in conducting a CIMT analysis.
This “third step” permitted adjudicators to examine any additional evidence deemed necessary to resolve the CIMT question. The third step allowed for examination of evidence like police reports, witness statements, and other documents which may not have been subjected to a criminal court’s evidentiary standard for conviction, i.e. proof beyond a reasonable doubt. The AG’s decision thus essentially dismissed nearly a century of judicial precedent, and permitted the use of dubious evidence against aliens in removal proceedings.
The Fifth Circuit’s ruling vacates the AG’s 2008 decision and reinstates the traditional categorical and modified categorical inquiries as the governing law for CIMT analyses in the Fifth Circuit. However, at least two other federal circuit courts so far have afforded deference to the AG’s decision, leaving an unresolved circuit split ripe for resolution at the Supreme Court in perhaps the not-to-distant future.