Matter of Silva-Trevino: Going, going ….

Sunday, October 16th, 2011
By: Jonathan MontagJ.D.

On November 7, 2008, outgoing Attorney General Michael Mukasey turned immigration law on its head when he issued a decision, Matter of Silva-Trevino. Rather than go into all its details, I refer you to a blog I posted on it in January 2011 and an article I co-authored.  In January I optimistically forecasted that Matter of Silva-Trevino would not survive Ninth Circuit scrutiny. I wrote:

This case (Rosas Castaneda v. Holder also may be foreshadow the demise of another precedent decision, Matter of Silva Trevino. In this case, the Attorney General vacated a BIA decision about whether a crime an alien committed was a crime of moral turpitude and constructed a new framework for evaluating whether a crime is a crime of moral turpitude. To make this evaluation, an immigration judge is commanded to look outside of the record of conviction to determine what the alien actually did if the record of conviction is ambiguous. This is contrary to precedent in the Ninth Circuit. The abandonment of the categorical and modified categorical approaches was based on the fact that aliens do not plead guilty to “crimes of moral turpitude,” and so the immigration court needs to look beyond the record of conviction to find out what happened. Of course, people do not plead guilty to “aggravated felonies” either, but, after Rosas-Castaneda it is unambiguously clear that immigration courts are restricted to the record of conviction in determining the actual conduct. We will have to see what the Ninth Circuit has to say about whether what is good for aggravated felonies is good for crimes of moral turpitude.

In the glacial speed that wrongs are righted in our judicial system, the Ninth Circuit has not yet issued a decision in Matter of Silva-Trevino. However, three have. On October 6, 2009, the 3rd Circuit rejected it in Jean-Louis v. Attorney General of the United States. On August 4, 2010, the Eighth Circuit rejected it in Guardado-Garcia  v. Holder. On October 12, 2011, the 11th Circuit rejected it in Sanchez Fajardo v. Attorney General.

One circuit, the Seventh Circuit, so far, favors Matter of Silva-Trevino, in its decision, penned by Judge Frank H. Easterbrook, Ali v. Mukasey, penned on April 4, 2008, before the publication of Matter of Silva-Trevino.

If predicting a decision in the Ninth Circuit were like dodgeball, then three-to-one may favor that Matter of Silva-Trevino will not survive in the Ninth Circuit. Law, of course, is not dodgeball. However, there is another prognosticator, what happened at an oral argument on October 13, 2011, in San Francisco in a case, Olivas-Motta v. Holder. (The Ninth Circuit website disguises the argument as Christina Sandberg et al. v. City of Torrance, which gives me some assurance that I am not the only one who suffers from making clerical errors.)

Extremely ably argued by Attorney Kara Hartzler of Arizona, with whom I had the honor of co-writing an article along with another luminary (the third author, not me), the panel, seemed very critical of Matter of Silva-Trevino, neither appreciative of the decision’s ignoring extensive circuit precedent or the decision’s unwillingness to rely on unreliable evidence, namely, police reports. The attorney for the government failed to make the most salient point in his arsenal in favor of Matter of Silva-Trevino, sometimes everyone knows exactly what crime occurred, but it is not reflected in the record of conviction. (I will not illuminate further until the court issues a decision.)

An interesting side note about the oral argument. One judge commented on Ali v. Mukasey (I wish I could identify Circuit Court judge voices), considering it wrongly decided, and attributing it to the fact that Judge Easterbrook writes his own decisions, concluding that it is wisest for judges to leave writing to the clerks. I would love to know what that is all about. Posted on October 16, 2011.


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