Yet another look at Matter of Silva-Trevino, this time through a Rosas colored glasses.

Sunday, November 6th, 2011
By: Jonathan MontagJ.D.

Today I write again on a technical matter, discussing the case, Matter of Silva-Trevino, again. As you may recall from writings  here and here  and here, in this case, the then-attorney general, Michael Mukasey, issued a decision deviating from the prevailing law regarding what an immigration judge may consider in determining whether someone committed a crime of moral turpitude. This is important because depending on the number of such crimes, when they were committed, and the severity of the sentence, conviction for crimes of moral turpitude could result in exclusion, deportation, or ineligibility for relief from deportation.

The problem addressed in Matter of Silva-Trevino is how to determine whether someone was convicted of a crime of moral turpitude. This invites two questions:

1. What crime was the person convicted of?

2. Is the crime a crime of moral turpitude?

Matter of Silva-Trevino touches on the second question by giving a new definition of moral turpitude, though in reality the new definition is not much different than older ones. As for the first question, the perennial problem in immigration law is knowing what a crime of moral turpitude is. While certain crimes are clearly established as crimes of moral turpitude, such as theft or fraud offenses, there is uncertainty and hundreds of court decisions about many others. Matter of Silva-Trevino addresses principally this first question.

Besides the problem of knowing if a specific is a crime of moral turpitude, the problem is that many criminal statutes include multiple offenses, some of which  are morally turpitudinous and some of which are not – the term of art for a criminal statute containing more than one crime is a “divisible statute.” Traditionally, there has been a two-step process. First, one looks at the statute in question and determines if in all its usual interpretations, it is a crime of moral turpitude. This is called the categorical approach. If stealing is a crime of moral turpitude and a law that says, “Thou shall not steal,” then a person who is convicted of this offense would have been convicted of a crime of moral turpitude. If a law says, “Thou shall not covet your neighbor’s wife or her stuff or steal her stuff,” you are dealing with a divisible statute. You then go on to a second step – a modified categorical approach. Here, you figure out all the different crimes defined in the statute and determine which are morally turpitudinous. Then, you determine which one the alien committed. Then, you see if the one the alien was convicted of is a crime of moral turpitude or not. In our example, there are several crimes:

Coveting the neighbor’s wife.

Coveting the neighbor’s wife’s stuff.

Stealing the neighbor’s wife’s stuff.

But that is not all. There is also a question of what coveting is. Coveting may include:

Taking an overt lewd act without consent.

Taking an overt lewd act with consent.

Coveting in one’s heart, i.e., no overt act.

Arguably, the first may be morally turpitudinous, the second probably not (crimes like adultery used to be morally turpitudinous, but now are not), c.f. Hester Prynne and Newt Gingrich, and the third clearly not, as no action was taken.

How to determine which of the crimes the alien was convicted of is the problem. Applying the modified categorical approach, the immigration judge is limited to looking at the conviction documents – items such as the charging document, plea agreement, plea colloquy (what the alien admitted to when the criminal court judge asked about the crime), and specific facts in the record the conviction was based on. The difficulty often is that these documents often only provide vague information, such as “Defendant pleads guilty to coveting his neighbor’s wife,” or worse, “Defendant pleads guilty to coveting his neighbor’s wife or her stuff and stealing her stuff,” without discussing which he actually did. (Case law indicates when a conviction document changes a disjunctive “or” to a conjunctive “and” it does not mean the person was convicted of all the crimes listed in the statute as it is customary to change the “or” to an “and.”)

At this point of impasse, Matter of Silva-Trevino kicks in. This case allows the immigration judge to look outside the record of conviction to determine what happened. Thus, an immigration judge may look at police reports, probation reports, listen to testimony, or consider other evidence outside the record of conviction. Under this third step, if the alien testifies and says, “I coveted my neighbor’s wife and took an overt lewd step without consent,” that could be enough for the immigration judge to conclude that a crime of moral turpitude was committed.

Most analysis of Matter of Silva-Trevino ends here. But what happens if the third step is also inconclusive. This is where another line of cases come into play, having to do with burdens of proof. In the context of seeking relief from deportation, one statute, Cancellation of Removal for Certain Nonpermanent Residents (INA § 240A(b)) requires that the person not have been convicted of a crime of moral turpitude. The BIA held in Matter of Almanza-Arenas that the alien bears the burden of proving eligibility, and if he cannot prove that his crime was not a crime of moral turpitude, he failed to meet his burden and he cannot seek the relief. In other words, ambiguity goes against the alien.

The Ninth Circuit Court of Appeals, in Rosas-Castaneda v. Holder, reversed Matter of Almanza-Arenas and held that when the record of conviction is ambigouous, then the alien remains eligible for relief. In other words, ambiguity goes in favor of the alien. Rosas-Castaneda is a case involving whether a crime is an aggravated felony, but there is no reason to assume the same principle does not apply to crimes of moral turpitude – and, in fact, the BIA has applied Rosas Castaneda in moral turpitude cases in the Ninth Circuit in unpublished decisions.

The lesson is clear to immigration practitioners. If an immigration judge moves to the third step of Matter of Silva-Trevino, make sure to include evidence that favors the view that your client did not commit a crime of moral turpitude. If he pled nolo contendere, admitting nothing, and if he asserts he did nothing wrong but was forced to plead guilty because of a deal too sweet to pass up, he should testify that he did nothing morally turpitudinous – if he did nothing morally turpitudinous. If other witnesses are available to state your client did nothing morally turpitudinous, they should testify. If the alien provides a non-morally turpitudinous version of events in a probation report or a police report, submit it. If records are destroyed, produce proof they were destroyed. You should do whatever it takes to make the record unclear and thus preserve eligibility for relief.

It seems that many immigration judges, under Matter of Silva-Trevino, feel compelled after the third step of Matter of Silva-Trevino to make a decision – was the crime a crime or moral turpitude or not, just as a jury must decide after the trial on guilt or not. If the external evidence is clear that your client’s conduct was not morally turpitudinous (he lusted in his heart) then, the Matter of Silva-Trevino third step is your friend. However, if there is ambiguity, that does not mean you lose. Rosas-Castaneda shows there is in reality a step after the Matter of Silva-Trevino third step. The immigration judge must decide if the evidence is clear as to whether the crime is a crime of moral turpitude. If it is clear that the conduct was morally turpitudinous, then the alien is ineligible for relief (or deportable or excludable, depending on the case at hand). If the record remains unclear, then the alien is eligible for relief (or is not deportable or excludable). Until Matter of Silva-Trevino is overturned, that is the “silva” lining.  Posted November 6, 2011.



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