A USER S GUIDE TO MATTER OF SILVA-TREVINO

Transcription

1 13 Bender s Immigration Bulletin 1568 A USER S GUIDE TO MATTER OF SILVA-TREVINO BY ANN ATALLA Crimes involving moral turpitude have been a problematic area of immigration law for decades, largely due to their vague and often conflicting manifestations in statutory and case law. Much confusion stems from broad definitions crafted over the years, such as conduct which is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general and ambiguous terms such as malum in se and evil intent. 1 This language has spawned questions about the mens rea required for crimes involving moral turpitude. When is specific intent necessary? Is mere willingness to commit a crime or recklessness sufficient to rise to the level of moral turpitude? Other problems spring from a circuit split in the treatment of moral turpitude analysis. For example, the Second and Fifth Circuits provide an analysis of statutory language, followed under narrow circumstances by an examination of the record of conviction. 2 In contrast, the Seventh Circuit permits discretionary consideration of all relevant evidence to characterize or classify an offense. 3 This divergence results in inconsistent applications of the law in immigration courts nationwide. Courts might find that an assault offense would not constitute a crime involving moral turpitude in the Fifth Circuit, where the judge is confined to the statutory language and the record of conviction, but would involve moral turpitude in the Seventh Circuit, where witness testimony outside the conviction record might be considered. In recognition of these problems, the Attorney General has taken on the ambitious task of clarifying the analysis and definition of crimes involving moral turpitude. To mend the patchwork of different approaches across the nation, his opinion seeks to 1 Matter of Khourn, 21 I. & N. Dec. 1041, 1046 (BIA 1997); Matter of Franklin, 20 I. & N. Dec. 867, 868 (BIA 1994); Matter of Flores, 17 I. & N. Dec. 225, 227 (BIA 1980). 2 See, e.g., Wala v. Mukasey, 511 F.3d 102, 109 (2d Cir. 2007); Amouzadeh v. Winfrey, 467 F.3d 451, 455 (5th Cir. 2006). 3 Ali v. Mukasey, 521 F.3d 737, (7th Cir. 2008). establish a uniform framework for ensuring that the Act s moral turpitude provisions are fairly and accurately applied. 4 This article aims to make sense of these findings. A. The Analytical Framework in Silva-Trevino Silva-Trevino has made several substantial changes in the methodology for analyzing crimes involving moral turpitude. Specifically, Silva-Trevino makes changes to the categorical and modified categorical inquiries practitioners make when examining statutory text and conviction records. It also permits immigration judges to consider evidence outside the record of conviction. Some of these changes may require immigration practitioners to employ new strategies when analyzing crimes involving moral turpitude. 1. Step One: Categorical Inquiry To determine whether an offense involves moral turpitude under Silva-Trevino, the analysis begins with the familiar categorical approach and a close examination of the statutory text. 5 The practitioner must look to the statute of conviction rather than to the specific facts of the alien s crime to determine whether the inherent nature of the crime involves moral turpitude. 6 For example, the Board of Immigration Appeals has found that an offense involving an intentional infliction of serious bodily harm constitutes a crime involving moral turpitude. 7 Therefore, if a statute of conviction for assault and battery requires only that the perpetrator intentionally inflict serious bodily injury, the statute would categorically involve moral turpitude because the conduct covered by this statute falls within the Board s definition of moral turpitude. Similarly, the Attorney General notes that a statute criminalizing the knowing commission of a sexual offense with a minor 4 Matter of Silva-Trevino, 24 I. & N. Dec. 687 (Att y Gen. 2008). 5 Id. at Id. at 696; Matter of Short, 20 I. & N. Dec. 136 (BIA 1989). 7 See, e.g., Matter of Sejas, 24 I. & N. Dec. 236 (BIA 2007).

2 13 Bender s Immigration Bulletin 1569 would inherently involve moral turpitude because it is a base and vile act that destroys the trust and innocence of society s most vulnerable members. 8 No further inquiry would be necessary for either of these cases. A more complex, and common, scenario arises when a statute of conviction may apply to conduct that does and does not involve moral turpitude. For example, an assault statute might involve reprehensible base and vile conduct, but not explicitly require knowledge, intent, or any other mens rea necessary to comprise a crime involving moral turpitude. 9 Before Silva-Trevino, circuit courts varied in their treatment of this situation. 10 The Third and Fifth Circuits examined whether the most minimal conduct that could hypothetically permit a conviction under such a statute involved moral turpitude. 11 The First and Eighth Circuits looked at whether the crime generally or commonly involved moral turpitude. 12 The Attorney General rejects both of these approaches. 13 Instead, Silva-Trevino adds a new requirement to the categorical approach. The practitioner should now demonstrate that there is a realistic probability that the criminal statute under which the alien was convicted would be applied to reach conduct that does not involve moral turpitude. 14 This realistic probability requires a showing that, at the time of an alien s removal proceeding, an actual (rather than hypothetical) case exists in which the relevant criminal statute was applied to conduct that did not involve moral turpitude. 15 If the statute has not been applied to conduct not involving moral turpitude in any case (including the alien s own case), the inquiry ends under Silva- Trevino. 16 The judge can now reasonably conclude that all convictions under the statute may categorically be treated as ones involving moral turpitude. 17 If, on the other hand, the practitioner finds a case in which the assault statute was applied to conduct that did not 8 Silva-Trevino, 24 I. & N. Dec. at See id. 10 Id. at Id. 12 Id. 13 See id. at Id. at Id. at 697 (emphasis added). 16 Id. 17 Id. involve moral turpitude, such as willful touching, the practitioner should apply the modified categorical approach (outlined below). 18 In other words, Silva-Trevino discourages an attorney from arguing that an offense such as assault and battery is not a crime involving moral turpitude because the minimal conduct that could hypothetically permit a conviction under state or federal law such as mere touching does not involve moral turpitude. The Attorney General explicitly rejects such an analysis, noting that [i]magination is not the appropriate standard under the framework set forth in this opinion. 19 Rather, the practitioner must remember to show that at the time of the alien s removal proceeding, an actual case existed in which the assault and battery statute was applied to mere touching or other conduct that did not involve moral turpitude. 20 A practitioner also does not need to show under Silva- Trevino that moral turpitude inheres in the usual or common case under a particular statute, as required in the First and Eighth Circuits. For example, a respondent s attorney need not establish that an assault and battery statute has been applied to mere touching or other conduct not involving moral turpitude in the average or common case. 21 Such a requirement would be over-inclusive. 22 A single example of any actual case, including a respondent s own case, is all that is necessary to establish a realistic probability. 23 One strategy that practitioners could use to avoid the negative implications of Silva-Trevino is to examine how courts have treated the analysis in Gonzales v. Duenas-Alvarez, 24 which the Attorney General used as a model for the realistic probability test. For example, in United States v. Grisel, the Ninth Circuit noted that when a state statute explicitly defines a crime more broadly than the generic definition, no legal imagination is required in determining that a realistic probability exists that the state will apply its statute to conduct that falls outside the generic definition of the crime. 25 Further, the Sixth Circuit has found realistic probability under Duenas-Alvarez when no state cases explicitly addressed whether a 18 See id. at Id. at See id. at See id. 22 See id 23 See id. at 697, 704 n U.S. 183 (2007) F.3d 844, 850 (9th Cir. 2007).

3 13 Bender s Immigration Bulletin 1570 criminal statute included a specific type of conduct, but state cases [made] it clear that inclusion of that conduct under the statute is contemplated by law Step Two: Modified Categorical Inquiry The categorical approach will resolve some issues involving moral turpitude under Silva-Trevino. For example, the statute of conviction may clearly include language that the courts have found involves moral turpitude, or the statute may never have been applied to conduct that does not involve moral turpitude. The analysis may end at that point because the practitioner could not meet the realistic probability test. 27 But what happens if the respondent s statute of conviction has at some point been applied to conduct that does not involve moral turpitude? Silva-Trevino indicates that in that case, the categorical determination does not end the moral turpitude inquiry. Rather, one should then proceed to the second step of the analysis: the modified categorical inquiry. 28 Under the modified categorical approach outlined in Silva-Trevino, as in Board cases, the adjudicator examines the record of conviction to determine whether the offense in question involved moral turpitude. 29 For example, when an assault and battery statute includes language relating to mere touching as well as severe and intentional physical abuse, a judge could consider documents such as the indictment, the judgment of conviction, jury instructions, a signed guilty plea, or the plea transcript to determine whether the respondent s conduct transcended mere touching and involved a more serious harm or intent to harm. 30 If the record of conviction indicates that the respondent s behavior transcended mere touching, for example, and involved a beating coupled with threats of serious injury, the inquiry would end at that point because it indicates an involvement of moral turpitude. 31 Before Silva-Trevino, the inquiry also might have ended if the record of conviction provided no further 26 See United States v. McGrattan, 504 F.3d 608, 614 (6th Cir. 2007). 27 See Silva-Trevino, 24 I. & N. Dec. at Id. at See id. at 699; Matter of Ajami, 22 I. & N. Dec. 949, 950 (BIA 1999). 30 See Silva-Trevino, 24 I. & N. Dec. at See id.; see also Short, 20 I. & N. Dec. at 136. information about the nature of the offense. However, now if the record of conviction does not indicate that the offense involved moral turpitude, the Attorney General permits a third step: the consideration of evidence outside of the record of conviction Step Three: Considering Evidence Beyond the Record of Conviction One of the boldest aspects of the analysis in Silva- Trevino is this optional third step following the modified categorical inquiry. When the examination of the record of conviction fails to indicate whether an offense involves moral turpitude, the Attorney General indicates that 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. 33 The Attorney General found that the Supreme Court s holdings in Taylor v. United States 34 and Shepard v. United States, 35 which limit a court s inquiry to an alien s formal conviction record, therefore no longer apply when immigration courts adjudicate most crimes involving moral turpitude. 36 Why is this the case? The Attorney General offers the following rationale: (1) The context of Taylor and Shepard related to factual inquiries in criminal sentencing cases, involving the burdens of a retrial on sentencing and the allocation of tasks between judge and jury under the Sixth Amendment. Immigration proceedings, however, are not criminal prosecutions, so they do not trigger the Sixth Amendment. 37 (2) Moral turpitude is not an element of any criminal offense, so an examination of the record of conviction is often not fruitful. Rather, the answer turns on factors beyond the elements of the crime, and evidence outside of the conviction record can sometimes shed light on those factors. 38 Silva-Trevino does not spell out when it is necessary and appropriate to consider evidence outside of the conviction record. 39 The case thus leaves some room to contest the application, or non-application, of this standard. However, the case provides some concrete guidance: 32 See Silva-Trevino, 24 I. & N. Dec. at Id. at U.S. 575 (1990) U.S. 13 (2005). 36 See Silva-Trevino, 24 I. & N. Dec. at Id. 38 Id. 39 See id. at

4 13 Bender s Immigration Bulletin 1571 The evidence might include evidence otherwise admissible in removal proceedings, including witness testimony. 40 However, the immigration judge has the discretion to consider additional evidence or testimony only when and to the extent he or she determines that it is necessary. 41 This standard 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. 42 The examination of evidence outside the conviction record is limited to ascertain[ing] the nature of a prior conviction; it is not an invitation to relitigate the conviction itself. 43 In many, if not most, cases, the immigration judge will not need to go beyond the record of conviction. 44 B. Mens rea The Attorney General also addresses the mens rea requirement for crimes involving moral turpitude. The Board had offered guidance on this issue, noting that moral turpitude typically includes some sort of culpable mental state, typically involving intentional or reckless behavior, specific intent, or willfulness. 45 In discussing the definition of moral turpitude, the Attorney General echoes a general sentiment that moral turpitude does not depend on the severity of the offense, but rather the scienter or mens rea, combined with the reprehensible nature of the act. 46 For example, an adjudicator may properly make a categorical finding that conduct involves moral turpitude when it results in a conviction of intentional sexual contact with a person the defendant knew or reasonably should have known was a child Id. at 701 (citing Matter of Babaisakov, 24 I. & N. Dec. 306, (BIA 2007)). 41 Id. at Id. (citing Matter of Pichardo, 21 I. & N. Dec. 330, 335 (BIA 1996)). 43 Id. 44 Id. 45 See, e.g., Matter of Solon, 24 I. & N. Dec. 239 (BIA 2007); Matter of Kochlani, 24 I. & N. Dec. 128, (BIA 2007); Ajami, 22 I. & N. Dec. at Silva-Trevino, 24 I. & N. Dec. at Id. More specifically, scienter can refer to specific intent, deliberateness, willfulness, or recklessness. 48 However, practitioners and adjudicators should be careful before broadly applying moral turpitude to any offense that requires these forms of scienter. The Attorney General notes, for example, that certain crimes involve moral turpitude when a conviction requires willfulness or a knowing act, or recklessness. 49 Therefore, certain other crimes may not. Context matters the offense must both include scienter and be reprehensible. 50 Because the term reprehensible remains ambiguous, a search for prior case law addressing moral turpitude of an offense may offer the best guidance. C. Other Issues Raised by Silva-Trevino 1. Aggravated Felonies The Attorney General specifies that this opinion does not extend beyond the moral turpitude issue and apply to aggravated felonies. 51 Rather, moral turpitude is unique in the sense that it stands apart from the elements of the [underlying criminal] offense. 52 The Board has, in some cases, justified looking beyond the record of conviction in aggravated felony cases, such as those involving fraud or deceit in which the loss to the victim or victims exceeds $10,000 under INA 101(a)(43)(M)(i). 53 However, in those cases, the immigration judge makes a separate finding relating to a loss that is not tied to the elements of a criminal statute Brand X Implications Much of a practitioner s strategy in addressing crimes involving moral turpitude will depend on how the circuit courts react to Silva-Trevino. In National Cable & Telecommunications Ass n v. Brand X Internet Services, 55 the Supreme Court noted that when a statute is ambiguous, an agency may offer its own interpretation of the statute that does not follow a circuit court decision. Silva-Trevino notes a presumption that Congress, when it left ambiguity in a statute meant for implementation by an agency, 48 Id. at See id. at 706 n Id. 51 Id. at Id. at. 704 (citing Ali, 521 F.3d at 743). 53 Babaisakov, 24 I. & N. Dec. 306, (BIA 2007). 54 See Silva Trevino, 24 I. & N. Dec. at U.S. 967 (2005).

5 13 Bender s Immigration Bulletin 1572 understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows. 56 The Attorney General argues that the provisions relating to crimes involving moral turpitude in the Immigration and Nationality Act are sufficiently ambiguous to trigger Brand X. 57 The Act fails to define the term crime involving moral turpitude, and does not provide the courts with the methodology for determining whether an offense comprises a crime involving moral turpitude. 58 However, this opinion overtly criticizes First, Third, Fifth, and Eighth Circuit opinions as poorly designed to distinguish crimes that involve moral turpitude from those that do not. 59 Only time will tell whether the circuit courts will apply the bold analysis in Silva-Trevino or dismiss it as an act of defiance. D. Conclusion In summary, Silva-Trevino requires attention to the following points when analyzing crimes involving moral turpitude. First, when conducting a categorical inquiry, the practitioner would continue to look to the statute of conviction to determine whether the inherent nature of the crime involves moral turpitude. However, when a statute of conviction may apply to conduct that does and does not involve moral turpitude, one would need to establish a realistic probability that the statute would be applied to reach conduct that does not involve moral turpitude. In other words, Silva- Trevino requires that the practitioner demonstrate that at the time of an alien s removal proceeding, an actual (rather than hypothetical) case exists in which the relevant criminal statute was applied to conduct that did not involve moral turpitude. Second, if the categorical inquiry does not clarify whether moral turpitude was involved in the case, or a respondent s statute of conviction has at some point been applied to conduct that does not involve moral turpitude, one would then proceed to the second step of the analysis: the modified categorical inquiry. At this stage, an immigration judge could consider documents such as the indictment, the judgment of conviction, 56 See Silva-Trevino, 24 I. & N. Dec. at 696 (quoting Brand X, 545 U.S. at 982 (itself quoting Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735, (1996), and citing Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)). 57 Silva-Trevino, 24 I. & N. Dec. at jury instructions, a signed guilty plea, or the plea transcript to determine whether the respondent s conduct involves moral turpitude. Third, Silva-Trevino permits a third step when a modified categorical inquiry fails to resolve the issue: The immigration judge is 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. This inquiry is limited to ascertain[ing] the nature of a prior conviction; it is not an invitation to relitigate the conviction itself. Fourth, Silva-Trevino serves as a reminder that in addition to involving base, vile, or depraved, conduct that is contrary to the accepted rules of morality and the duties owed between persons or to society in general, crimes involving moral turpitude must include the appropriate mens rea. This scienter requirement can refer to specific intent, deliberateness, willfulness, or recklessness. Finally, the Attorney General specifies in Silva-Trevino that this case applies only to crimes involving moral turpitude, and not aggravated felonies. Moreover, practitioners should be aware of new circuit court cases that respond to this case favorably or unfavorably. The ultimate power of this case will depend on treatment by the circuit courts following the Attorney General s invocation of Brand X. Ann Atalla is the BIA Pro Bono Project Attorney at the Catholic Legal Immigration Network in Washington, DC. After obtaining degrees from the University of Michigan and New York University, she graduated from American University s Washington College of Law. She was selected for the Department of Justice Attorney General s Honors Program and served as the Arlington Immigration Court s Judicial Law Clerk and Attorney Advisor from 2006 to REMINDER: The correct citation form for the BIB is Author, Title, 13 Bender's Immigr. Bull (Dec. 15, 2008). 58 Id. 59 Id. at 695.