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Living Under Silva-Trevino

by Norton Tooby and Dan Kesselbrenner

Introduction. On November 7, 2008, only two months before leaving office, Attorney General Mukasey decided Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. November 7, 2008), in which he greatly modified the analysis used to determine whether a given conviction constitutes a crime of moral turpitude (CMT) for removal purposes, if, indeed, he did not virtually scrap 100 years of thoughtful jurisprudence altogether. This decision also uses different language to define the term "crime of moral turpitude," although it is not clear whether the definition has been changed.

A number of descriptions of this important decision have been published. Counsel for Mr. Silva-Trevino filed a motion for reconsideration, supported by an amicus curiae brief, raising many powerful arguments why this decision should be vacated and the case reconsidered. The Attorney General denied this motion on January 15, 2009, a few days before leaving office. An additional motion for reconsideration has been filed, this time before incoming Attorney General Eric Holder, but it has not been decided as of this writing. These motions provide an excellent checklist of objections against the Silva-Trevino analysis that can be raised in immigration proceedings and petitions for review. Every circuit, except the Seventh, has held the traditional categorical analysis applies to determining whether a conviction constitutes a CMT, and Silva-Trevino may therefore have little or no impact at the end of the day. The Second Circuit has already rejected a similar effort by the BIA to modify the categorical analysis, and other circuits may well follow suit, especially in view of the strength of the arguments against Silva-Trevino made in the motions for reconsideration mentioned above.

What do we do in the meantime? What has so far received less attention is the question: How can immigration counsel best represent immigrants in removal proceedings involving alleged crimes of moral turpitude under Silva-Trevino? What do we do before an Immigration Judge or BIA that feels bound to abide by Silva-Trevino? That is the subject of this article.

Granted Silva-Trevino contains language damaging to respondent's chances of persuading an immigration judge that a given conviction is not a CMT. Granted that the Attorney General's analysis is not even-handed and is often quite inconsistent with the very methodology he describes. The methodology that he says he is using, however, leaves more arguments open to respondents than might at first appear. This article outlines how to interpret Silva-Trevino so that it will minimize damaging consequences to respondents and undercut the government's ability to establish that a given conviction is a CMT.

Summary. The Attorney General outlined the new CMT analysis as follows:

In short, to determine whether an alien's prior conviction triggers application of the Act's moral turpitude provisions, adjudicators should: (1) look first to the statute of conviction under the categorical inquiry set forth in this opinion and recently applied by the Supreme Court in Duenas-Alvarez; (2) if the categorical inquiry does not resolve the question, look to the alien's record of conviction, including documents such as the indictment, the judgment of conviction, jury instructions, a signed guilty plea, and the plea transcript; and (3) if the record of conviction does not resolve the inquiry, consider any additional evidence the adjudicator determines is necessary or appropriate to resolve accurately the moral turpitude question.

(Silva-Trevino, supra, at 704.)

Under Silva-Trevino, analysis of a CMT conviction involves up to three steps. Step One is the traditional categorical analysis of the elements, with the added requirement that respondent must establish a reasonable probability that the criminal statute of conviction has indeed been applied in a factual situation that does not constitute a CMT. If Step One gives an unambiguous answer to the CMT question, one way or the other, the analysis ends there. If not, analyis proceeds to Step Two: the examination of the traditional record of conviction documents, to see whether they contain "facts" that bring the conviction within the CMT definition. If Step Two gives an unambiguous answer, one way or the other, the analysis stops there. If the CMT question is still open, we proceed to Step Three in which the Immigration Judge may consider any reliable evidence s/he feels is necessary and appropriate to see whether the offense conflict involved moral turpitude.

Limitation to Crime of Moral Turpitude Cases. The Attorney General specifically limited this new decision to CMT cases: "This opinion does not, of course, extend beyond the moral turpitude issue-an issue that justifies a departure from the Taylor/Shepard framework because moral turpitude is a non-element aggravating factor that 'stands apart from the elements of the [underlying criminal] offense.' Ali, 521 F.3d at 743." (Silva-Trevino, supra, at 704.) This new analysis therefore cannot be applied to convictions of aggravated felonies, crimes of domestic violence, firearms cases, controlled substances, or any of the twenty-four grounds of deportation - other than the CMT grounds -- that are triggered by a specified criminal conviction.

Burden of Proof. The Attorney General ignores that in Matter of Becera-Miranda, 12 I. & N. 358 (BIA 1967), the BIA placed the burden of persuasion on the government to prove that a returning LPR was inadmissible.

In Chew v. Rogers, 257 F.2d 607 (DC Cir. 1958), the court said flatly "... if Chew is to be deprived of his status ... the Immigration and Naturalization Service may do so only in proceedings in which the Service is the moving party, and it bears the burden of proof ...." (Emphasis supplied.) This Board has already affirmed its awareness of Chew v. Rogers in Matter of Becera-Miranda, 12 I&N 358 (BIA 1967).

(Matter of Kane, 15 I. & N. Dec. 258, 264 (BIA 1975).) Counsel with clients in inadmissibility proceedings can continue to argue that under Matter of Becera-Miranda, the government bears the burden of proving that a conviction is a CMT, since these authorities were not explicitly mentioned or overruled in Silva-Trevino.

Step One: Traditional Categorical Analysis. The Attorney General's first step is the same old first step, the categorical analysis almost universally used to answer the CMT question for 100 years, with the addition of the reasonable-probability refinement from Duenas. (Silva-Trevino, supra, at 688.) He specifically adopted the normal categorical analysis used by the Supreme Court recently in Duenas-Alvarez. (Ibid. at 704.)

The Step One categorical analysis is an elements-only test, and completely ignores the facts of the case. The Supreme Court explicitly used the traditional categorical analysis: "the lower courts uniformly have applied the approach this Court set forth in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)." (Id. at 185.) Therefore, all normal categorical analysis and defenses apply to this stage. As usual, the analysis ignores the facts completely. Under this analysis, a court seeking to determine whether a particular prior conviction falls within a ground of removal should normally look to the state statute defining the crime of conviction, "not to the facts of the particular prior case." (Duenas, supra, at 186, quoting Taylor, supra, at 599-600.)

The minimum-conduct test also continues to apply, since that is what the Supreme Court used in Taylor, and the Supreme Court applied the Taylor analysis to the removal context in Duenas, which the Attorney General adopted in Silva-Trevino. The Attorney General also listed this as something on which the federal and immigration courts agreed:

There are a few basics on which the Board and the Federal courts have generally agreed. To begin with, they generally agree that in deciding whether an alien's prior criminal conviction constitutes a conviction for a crime involving moral turpitude-that is, whether moral turpitude "necessarily inheres" in a violation of a particular State or Federal criminal statute, Matter of Torres-Varela, 23 I&N Dec. 78, 84 (BIA 2001)-immigration judges and the Board should engage in a "categorical" inquiry and look first to the statute of conviction rather than to the specific facts of the alien's crime.

(Silva-Trevino, supra, at 688; accord, 696 ["The Department and the Federal courts agree that, to determine whether a crime involves moral turpitude, immigration judges should first engage in a "categorical" inquiry and look to the statute of conviction rather than to the specific facts of an alien's crime."].)

Step One therefore asks whether the elements of the statute of conviction always or never fall within the definition of crime of moral turpitude. If they always fall within the ground of deportation, then Step One concludes that all convictions under the statute are CMT. If they never fall within the definition, then the conviction is categorically not a CMT. For example, it is well-established that merely regulatory offenses do not constitute crimes of moral turpitude, because there is nothing inherently wrong with engaging in the particular activity, except that someone has passed a law against it. Silva-Trevino does not alter this rule. "The [reprehensible] definition [of moral turpitude] also faithfully implements the Act's distinction between crimes involving moral turpitude (which trigger specific immigration consequences) and criminal conduct generally (which the Government has a valid interest in punishing whether or not it qualifies as morally offensive or involves scienter) by more clearly articulating the subjective, or intent, element that has long characterized judicial and administrative recognition of crimes involving moral turpitude in the immigration context." (Silva-Trevino, supra, at 689 n.1.)

It is only necessary to proceed to Step Two if Step One does not resolve the inquiry. "Second, where this categorical analysis does not resolve the moral turpitude inquiry in a particular case, an adjudicator should proceed with a "modified categorical" inquiry." (Silva-Trevino, supra, at 690.)

The only sense in which the minimum-conduct approach has been modified in Silva-Trevino is that after applying it, the adjudicator will apply the additional "reasonable probability" requirement first enunciated in Duenas:

I thus find the analysis in Duenas-Alvarez persuasive and conclude that, in evaluating whether an alien's prior offense is categorically one that involved moral turpitude, immigration judges should determine whether there is a "realistic probability, not a theoretical possibility," that a State or Federal criminal statute would be applied to reach conduct that does not involve moral turpitude. Duenas-Alvarez, 549 U.S. at 193.

(Silva-Trevino, supra, at 698, quoting Duenas, supra, at 193.) The "reasonable probability" requirement is satisfied by a showing that "the criminal statute in issue has at some point been applied to conduct that did not involve moral turpitude . . . ." (Silva-Trevino, supra, at 698.)

This "reasonable probability" test

focuses the adjudicator on a criminal statute's actual scope and application and tailors the categorical moral turpitude inquiry by asking whether, at the time of an alien's removal proceeding, any actual (as opposed to hypothetical) case exists in which the relevant criminal statute was applied to conduct that did not involve moral turpitude. Cf. Duenas-Alvarez, 549 U.S. at 193. If the statute has not been so applied in any case (including the alien's own case), the adjudicator can reasonably conclude that all convictions under the statute may categorically be treated as ones involving moral turpitude. In such circumstances, the history of adjudication generally establishes no realistic probability that the statute, whatever its language may hypothetically allow, would actually be applied to acts that do not involve moral turpitude. See id. By contrast, if the language of the criminal statute could encompass both conduct that involves moral turpitude and conduct that does not, and there is a case in which the relevant criminal statute has been applied to the latter category of conduct, the adjudicator cannot categorically treat all convictions under that statute as convictions for crimes that involve moral turpitude. See id. at 185-88, 193.

(Silva-Trevino, supra, at 697.)

The traditional categorical analysis of Taylor and Duenas also contemplates that the elements of the statute of conviction categorically establish that no conviction under the statute constitutes a crime of moral turpitude. In fact, that was the holding in both of those cases.

Silva-Trevino might be read as placing the burden of proof of a reasonable probability on the noncitizen, even in deportation proceedings. "Because such a statute will ordinarily be subject to categorical treatment under the realistic probability approach, it is the alien who must "point to his own case or other cases" in which a person was convicted without proof of the statutory element that evidences moral turpitude." (Id. at 704 n.4.) Immigration counsel, however, should argue that the government in deportation proceedings always bears the burden of proof of every fact necessary to establish the ground of deportation under applicable Supreme Court authority and the statute.

The Fifth and Ninth Circuits have taken different approaches to the Duenas reasonable probability issue. On the one hand, the Fifth Circuit appears to take a very narrow view -- requiring the noncitizen or defendant provide either personal evidence (from his or her own case) or case law showing that the statute of conviction reaches conduct that falls outside the definition of the ground of deportation. In United States v. Ramos Sanchez, the court rejected the contention that an indecent solicitation statute at issue was overbroad because it could be used to prosecute a minor. Even though the statute at issue had been used to prosecute a 17-year-old for having sex with his 15-year-old girlfriend, the court found that case inapplicable, since the age of consent in Kansas was 16. The Fifth Circuit has also applied the "ordinary case" test established by the Supreme Court in James v. United States, 550 U.S. 192 (2007). In that case, courts look to whether the hypothetical non-CMT conduct is "ordinarily" punished under the statute.

On the other hand, the Ninth Circuit does not require the noncitizen to provide "specific examples" of a state prosecuting people "for acts that would fall outside the generic definition of crimes of moral turpitude." Rather the court stated that:

The issue is not whether in some cases violators of section 32 have been involved in a crime of moral turpitude. The issue is whether everyone prosecuted under that section has necessarily committed a crime involving moral turpitude. There is nothing inherent in the crime of accessory after the fact that makes it a crime involving moral turpitude in all cases.

Likewise, in finding that the California offense of leaving the scene of an accident resulting in bodily injury was not a crime of moral turpitude, the Ninth Circuit found that looking to the statutory language, "a driver in an accident resulting in injury who stops and provides identification, but fails to provide a vehicle registration number, has violated the statute." The court then rejected the DHS's argument that such an offense would not be prosecuted:

We cannot . . . ignore the plain language of § 20001(a). Duenas-Alvarez does caution us against "conjur[ing] up some scenario, however improbable, whereby a defendant might be convicted under the statute in question even though he did not commit the act encompassed by the federal provision." United States v. Carson, 486 F.3d 618, 610 (9th Cir. 2007) (per curiam). But where, as here, the state statute plainly and specifically criminalizes conduct outside the scope of the federal definition, we do not engage in judicial prestidigitation by concluding that the statute "creates a crime outside the generic definition of a listed crime." Duenas-Alvarez, 127 S.Ct. at 822.

Other courts may also follow this analysis, and counsel outside the Ninth Circuit could argue that the same reasoning should be followed.

Under Silva-Trevino, immigration counsel can argue that an offense is not a CMT because the statute of conviction punishes non-CMT conduct. Immigration counsel can prove that there exists a reasonable probability of prosecution, i.e., that a single case that lies outside the CMT definition has in fact been prosecuted, in a variety of ways:

  1. A reported decision under the statute.
  2. An unreported decision under the statute.
  3. The defendant's own case.
  4. Any other case, proven by the declaration of defense counsel or anyone else. Criminal defense listservs may be used to announce the search for a specific case, and to obtain a declaration from defense counsel in that case.
  5. Form jury instructions should also be acceptable. For example, if an auto theft statute instruction informs the jury that the defendant must be found guilty of unauthorized driving no matter for how short a distance or period of time, that sufficiently establishes probability of prosecution because the courts were anticipating actual cases in which the jury needed guidance on this point.

Advice for Criminal Defense Counsel. While the subject of this article is representation before an immigration judge, a word about advising criminal defense counsel in the criminal case is in order. Immigration counsel should suggest they seek a plea to a "safe haven" offense that cannot constitute a CMT under the elements test, such as spitting on the sidewalk, or any other offense that cannot be said to be reprehensible on the elements, nor even to include reprehensible conduct. The offense selected should not be a divisible offense, but should have only one set of elements, so immigration counsel can argue that there is no ambiguity and the noncitizen wins at Step One, before reaching the Step Two record of conviction analysis. These would include offenses with a scienter element less than "specific intent, deliberateness, willfulness, or recklessness." (Id. at 687.) Examples include mens rea of mere negligence or strict liability, as well as forms of "recklessness" that amount to no more than gross negligence, and nearly all "regulatory offenses" punishing conduct not itself reprehensible other than being unauthorized. (See Silva-Trevino, supra, at 689 n.1.)

Step Two: Traditional Modified Categorical Analysis. Silva-Trevino's Step Two consults the traditional record of conviction to see whether it contains "facts" that bring the conviction within the CMT ground of deportation, but only when the categorical analysis of Step One does not give a definitive answer to the CMT question: "where a statute encompasses both conduct that involves moral turpitude and conduct that does not (as evidenced by its application to the latter category in an actual case)." (Silva-Trevino, supra, at 698.) The Attorney General held that the record of conviction should be consulted "in every case where (because the criminal statute in issue has at some point been applied to conduct that did not involve moral turpitude) the categorical analysis does not end the moral turpitude inquiry." (Id. at 698-99.)

The record of conviction used here is the traditional one, limited to the traditional record of conviction. "Most courts, however, have limited this second-stage inquiry to the alien's record of conviction, including documents such as the indictment, the judgment of conviction, jury instructions, a signed guilty plea, or the plea transcript. See, e.g., Nicanor-Romero, 523 F.3d at 1007 ("We do not look beyond such documents … to determine what particular underlying facts might have supported [the prior] conviction.") (internal quotation marks and citations omitted). In my view, when the record of conviction fails to show whether the alien was convicted of a crime involving moral turpitude, immigration judges should be permitted to consider evidence beyond that record if doing so is necessary and appropriate to ensure proper application of the Act's moral turpitude provisions." (Silva-Trevino, supra, at 698.) And Step Two is also so limited. Unlike the traditional record of conviction analysis, however, Silva-Trevina's inquiry does not stop here. Under the normal analysis, if the record of conviction does not establish that the conviction necessarily involved moral turpitude, then the government cannot sustain its burden of proof of deportability by clear and convincing evidence, and the court must conclude respondent is not deportable.

For example, some theft statutes, such as California's vehicular theft statute, can be violated with intent either to permanently or temporarily deprive the owner of the vehicle. Intent to permanently deprive would constitute moral turpitude. Joyriding, however, with intent only temporarily to deprive, however, does not constitute moral turpitude. If criminal defense counsel specifies, in the plea, that the conviction is for intent only temporarily to deprive, then the Step Two inquiry is conclusive. It absolutely specifies the conviction occurred under the non-CMT portion of the statute, and the respondent is not removable.

Similarly, a plea to burglary where the target offense is identified in the record of conviction as trespass (a non-CMT offense), cannot constitute a CMT, so the removal proceedings should be ordered terminated at Step Two, without proceeding to Step Three.

These results should be unchanged, since the Step Two record of conviction analysis does not have an inconclusive result in such a case. It is only where the normal record of conviction documents reaches an "inconclusive" result that the Silva-Trevino analysis proceeds to Step Three.

Step Three: Consideration of Any Other Evidence Necessary and Appropriate. Under Silva-Trevino, if the record of conviction is inconclusive, the immigration court proceeds to Step Three: "In my view, when the record of conviction fails to show whether the alien was convicted of a crime involving moral turpitude, immigration judges should be permitted to consider evidence beyond that record if doing so is necessary and appropriate to ensure proper application of the Act's moral turpitude provisions." (Id. at 699.) "The sole purpose of the [Step Three] inquiry is to ascertain the nature of a prior conviction; it is not an invitation to relitigate the conviction itself." (Id. at 703 [footnote 3 omitted].) This should apply to both the government and the respondent: neither party is allowed to contradict elements of the statute of conviction that were in fact adjudicated in the criminal case.

This new rule places great discretion in the hands of the Immigration Judge:

And where a party meets, or fails to meet, its burden of proof on an issue related to application of the Act's moral turpitude provisions based solely on the record of conviction and documentary evidence, the immigration judge need not consider additional evidence or testimony except when and to the extent he or she determines that it is necessary.

(Id. at 703 [footnote 4 omitted].) In other words, the Immigration Judge can decline to hear evidence beyond the record of conviction if s/he finds it it is not "necessary" or "appropriate" to do so, and in that case, where the Step Two record of conviction remains inconclusive, the party with the burden of proof loses.

The moral turpitude question left open to proof by necessary and appropriate evidence in Step Three is a narrow one. Categorical analysis of the elements of the statute alone in Step One have not given a decision in favor of either party. Respondent has shown a realistic probability that this statute would be applied to conduct beyond the pale of moral turpitude by showing a single instance in which this was done. The Step Two examination of the traditional record of conviction is likewise inconclusive, showing that the facts underlying the conviction might or might not have involved moral turpitude. Neither party may contest the elements of the statute, or the factors found true as part of the modified categorical analysis of the record of conviction. The remaining question is whether, within this narrow area, the defendant's conduct for which s/he was convicted in fact involved moral turpitude.

This last question becomes in effect a conduct-based ground of removal, subject to proof by any "necessary and appropriate evidence" like any other fact on which removal depends. Percipient witnesses, including the respondent, can testify. Character evidence can be submitted to buttress the credibility of any witness, including the respondent, and evidence of respondent's character for a pertinent trait, e.g., honesty, can be submitted for the purpose of proving conduct in conformity with that trait on the occasion in question. Evidence of the bias of any witness can be offered. Objections can be offered to any evidence, on grounds of unreliability or fundamental unfairness. Counsel can also argue for the application of the Federal Rules of Evidence; while not currently binding, an Immigration Judge is certainly free to follow them in any given instance.

In a theft-type case, for example, in which the elements and record leave open the question whether the defendant intended to deprive the owner of the property permanently (CMT) or only temporarily (non-CMT), the respondent could submit any available evidence that his intent was merely the latter. Where a conviction can be had under an assault statute for mere negligence, respondent can submit evidence that his intent did not exceed the merely negligent.

If the inquiry becomes too burdensome, the Immigration Judge could decide that it is not "necessary or appropriate" to listen to 25 witnesses. What the court cannot do is listen only to the evidence of one side, and exclude pertinent evidence offered by the other. Due process also prohibits a tribunal from allow one party to offer evidence on an issue, but precluding the other party from doing so.

Definition of Moral Turpitude. Silva-Trevino also stated: "To qualify as a crime involving moral turpitude for purposes of the Immigration and Nationality Act, a crime must involve both reprehensible conduct and some degree of scienter, whether specific intent, deliberateness, willfulness, or recklessness." (Id. at 687.)

A finding of moral turpitude under the Act requires that a perpetrator have committed the reprehensible act with some form of scienter. See, e.g., Partyka, 417 F.3d at 414 ("[T]he hallmark of moral turpitude is a reprehensible act committed with an appreciable level of consciousness or deliberation"); Wei Cong Mei v. Ashcroft, 393 F.3d at 740 ("[A] person who deliberately commits a serious crime is regarded as behaving immorally and not merely illegally") (emphases omitted); Michel v. INS, 206 F.3d 253, 263 (2d Cir. 2000) ("corrupt scienter is the touchstone of moral turpitude," hence the Board's "long-standing" rule that, "where knowledge is a necessary element of a crime under a particular criminal statute, moral turpitude inheres in that crime"). [FN5]

(Id. at 706.)

This definition, according to the Attorney General, "encompasses and describes existing Board precedents classifying many different crimes . . . ." (Id. at 706 n.5.) It therefore does not purport to alter the actual definition of moral turpitude for immigration purposes.

To constitute moral turpitude, the offense must (1) be reprehensible, and (2) require sufficiently culpable mens rea, which includes (a) specific intent, (b) deliberation, (c) willfullness, or (d) recklessness. (Id. at 687.) Therefore, as with aggravated felony crimes of violence under Leocal, an offense with an element of mere negligence or strict liability cannot constitute a crime of moral turpitude.

Criminal defense counsel can select an incident that does not involve moral turpitude in its underlying facts as the incident to which to plead guilty. For example, if a person engaged in unauthorized access to a computer, and thereby obtained information, on two occasions in violation of 18 U.S.C. § 1030(a)(2)(C), one committed in January and the other in March, he might plead guilty to the initial violation if there was no CMT conduct underlying the conviction, and avoid the March violation in which he entered the computer of another and intentionally committed major damage. The government could not use conduct that underlay a March charge, when the defendant entered a plea to the January incident.

Retroactivity Argument. Immigration counsel can argue before the immigration courts that Silva-Trevino should not be applid retroactively to pleas that were entered before November 7, 2008, the date on which it was published. In Miguel-Miguel, the Ninth Circuit held that Matter of Y-L, which held that drug trafficking is almost always a particularly serious crime, cannot be applied retroactively to a plea entered before its publication date, because Matter of YL announced a new substantive, definitional rule. St. Cyr also provides support for this argument.

Back-up Positions. Even though many defenses remain, it seems more likely that a given conviction will be found to be a CMT under the new rules. Therefore, it becomes even more important to consider post-conviction relief in the criminal courts at an early stage in removal proceedings, although fewer alternative dispositions may be safe under the Silva-Trevino analysis. If a conviction is vacated on grounds of legal invalidity, under Pickering, then there is no conviction-based CMT ground of removal. The government cannot go into the facts of the case to show CMT if there is no conviction at all. Second, if the immigration court does conclude a conviction is a CMT, counsel should be prepared with arguments for relief from removal. Third, counsel can raise the many objections against the validity of the Silva-Trevino analysis on petition for review in the federal courts.

Conclusion. Hopefully, this decision will be vacated. If not, however, we may have to live with it. Using its own language, counsel can argue forcefully that its principles have equal application to both parties. Since due process requires procedural rules to be even-handed, respondents may indeed be able to win termination of proceedings at Step One, Step Two, or Step Three.