Silva-Trevino v. Holder

• Citation: 742 F.3d 197
• Decision Date: 30 January 2014
• Docket Number: No. 11–60464.,11–60464.
• Parties: Cristoval SILVA–TREVINO, also known as Cristobal Silva–Trevinio, Petitioner v. Eric. H. HOLDER, Jr., United States Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

742 F.3d 197

Cristoval SILVA–TREVINO, also known as Cristobal Silva–Trevinio, Petitioner

v.Eric. H. HOLDER, Jr., United States Attorney General, Respondent.

No. 11–60464.

United States Court of Appeals, Fifth Circuit.

Jan. 30, 2014.

Elisabeth S. Brodyaga, San Benito, TX, for Petitioner.

Julie Marie Iversen, Trial Attorney, Tangerlia Cox, Lynda A. Do, Washington, DC, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals.

Before BENAVIDES, OWEN, and SOUTHWICK, Circuit Judges.

FORTUNATO P. BENAVIDES, Circuit Judge:

Cristoval Silva–Trevino challenges a new method the Attorney General and the Board of Immigration Appeals (“the Board”) used to determine that he had been convicted of a crime involving moral turpitude for the purposes of admissibility under § 212 of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101, et seq. Because we find the contested method inconsistent with the unambiguous language of the relevant statutory provision, we vacate the Board's determination.

I.

This case arises out of proceedings to remove Silva–Trevino pursuant to § 237 of the INA, which permits the removal of aliens convicted of an aggravated felony. See8 U.S.C. § 1227(a)(2)(A)(iii). Silva–Trevino concedes that he has been convicted of an aggravated felony (indecency with a child, § 21.11(a)(1) of the Texas Penal Code), but he seeks an adjustment of status under § 245(a), such that he might avoid removal. See id. § 1255(a). The immigration judge rejected this request, finding that Silva–Trevino's offense qualified as a crime involving moral turpitude, thus rendering him inadmissible and ineligible for discretionary relief. See id. § 1182(a)(2)(A)(i).

After the Board vacated the decision, the Attorney General certified the case for review, as permitted by 8 C.F.R. § 1003.1. In the resulting opinion, the Attorney General outlined a new method for determining whether an alien has been convicted of a crime involving moral turpitude. Matter of Silva–Trevino, 24 I. & N. Dec. 687 (A.G.2008). This method, contrary to our precedent, allows a judge to consider “evidence beyond the formal record of conviction” to the extent the judge deems “necessary and appropriate.” Id. at 699. The Attorney General also held that where a conviction record indicates “intentional sexual contact with a minor,” immigration judges should look for evidence that the alien “knew or should have known” that the victim was, in fact, a minor. Id. at 705.

On remand from the Attorney General, the Board sent the case back to the immigration judge, who applied the new rule, using Silva–Trevino's stipulations, testimony, and the victim's birth certificate to conclude that Silva–Trevino should have known the victim was a minor. This extrinsic evidence, combined with the record of conviction, was sufficient for the judge to find that Silva–Trevino had been convicted of a crime involving moral turpitude. The Board affirmed.

Silva–Trevino now seeks review of the decision, arguing that the Attorney General's method of classification is inconsistent with binding precedent and contradicts the express language of the INA. In the alternative, he contends that the method violates due process as applied to his case. Silva–Trevino also asks us to compel the Attorney General to supplement the record. However, as Silva–Trevino has not identified any specific omission from the record, or pointed to any relevant legal authority, he has waived this argument. Fed. R.App. P. 28(a)(9)(A), (a)(10).

II.

The INA affords this Court jurisdiction to review orders of removal. 8 U.S.C. § 1252(b). We review questions of law de novo. Rodriguez–Castro v. Gonzales, 427 F.3d 316, 320 (5th Cir.2005). The instant case requires us to decide whether the Attorney General's interpretation of the INA supersedes this Circuit's longstanding precedent. Where a statute is ambiguous, and an implementing agency's construction is reasonable, “Chevron requires a federal court to accept the agency's construction of the statute, even if the agency's reading differs from what the court believes is the best statutory interpretation.” Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 980, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005) (citing Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). Therefore, because Congress has clearly delegated to the Attorney General the authority to resolve questions of law regarding the INA, our precedent will prevail over his interpretation only if our construction “follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.” Brand X, 545 U.S. at 982, 125 S.Ct. 2688;see also8 U.S.C. § 1103(a)(1) (delegating interpretive authority to the Attorney General).

III.

In relevant part, § 212(a)(2)(A)(i) of the INA renders inadmissible “any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of a crime involving moral turpitude.” 8 U.S.C. § 1182(a)(2)(A)(i). As a consequence of this inadmissibility, the removable alien is ineligible for discretionary relief via an adjustment of status. 8 U.S.C. § 1255(a). Here, Silva–Trevino was denied relief because the conviction record, when paired with extrinsic evidence, indicated that he had been convicted of a crime involving moral turpitude. The Attorney General does not argue that Silva–Trevino has admitted to any such crime or act. We therefore limit our analysis to the “convicted of” clause of § 212(a)(2)(A)(1).

We should emphasize that the question before this Court is not whether Silva–Trevino's offense constitutes a crime involving moral turpitude. Rather, we consider only the means by which judges may determine whether a given conviction qualifies. We have long held that, in making this determination, judges may consider only “the inherent nature of the crime, as defined in the statute,” or, in the case of divisible statutes, “the alien's record of conviction.” Amouzadeh v. Winfrey, 467 F.3d 451, 455 (5th Cir.2006) (internal quotation marks and citations omitted); U.S. ex rel. McKenzie v. Savoretti, 200 F.2d 546, 548 (1952). We do not permit extrinsic inquiry into the “circumstances surrounding the particular transgression.” Amouzadeh, 467 F.3d at 455.

In reviewing Silva–Trevino's case, however, the Attorney General established a new approach that requires immigration judges and the Board to:

(1) look to the statute of conviction under the categorical inquiry and determine whether there is a “realistic probability” that the State or Federal criminal statute pursuant to which the alien was convicted would be applied to reach conduct that does not involve moral turpitude; (2) if the categorical inquiry does not resolve the question, engage in a modified categorical inquiry and examine the 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 is inconclusive, consider any additional evidence deemed necessary or appropriate to resolve accurately the moral turpitude question.

24 I. & N. Dec. at 704 (emphasis added). Today we must determine whether the relevant clause of INA § 212 is sufficiently ambiguous such that our precedent yields to the third step in this method. We need not address the first two steps. Although this is a matter of first impression for us, six of our sister circuits have already reached the issue. Two concluded that the phrase is ambiguous, while the other four found that it is not.¹ We agree with the majority of our sister circuits that the phrase is not ambiguous.

Fortunately, we need not speculate as to what is meant by the phrase “convicted of” a crime of moral turpitude, because Congress had the foresight to tell us. The statutory definitions indicate that “conviction means, with respect to an alien, a formal judgment of guilt....” 8 U.S.C. § 1101(48)(A). The statute then includes a list of the seven official documents that may be considered as proof of such a conviction. Id. § 1229a(c)(3)(B). There is no mention of any additional evidence; and the introductory phrasing, “any of the following documents or records,” gives no indication that extrinsic evidence is contemplated. Id.

We do not doubt that extrinsic inquiry would be relevant and convenient when classifying convictions. However, it would be a little odd to read this provision as allowing additional relevant evidence when, historically, Congress has simply told us when adjudicators can consider evidence on account of its relevance.² In fact, this very statute stipulates that the immigration judge “shall consider any credible evidence” relevant to the removal of victims of family violence. 8 U.S.C. § 1227(a)(7)(B). Yet with respect to the convictions at issue here, there is no such authorization. “Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983). Consequently, we assume that if Congress had intended for immigration judges to consider relevant extrinsic evidence in order to classify a conviction as a crime of moral turpitude, the legislators would have included language to that effect.

Moreover, the Supreme Court has already explained that, where Congress directs courts to determine whether a prior conviction qualifies as a certain type of crime, the use of a categorical approach is intended. Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). In Taylor, the Court considered whether, when determining if prior offenses constitute previous convictions for the purposes of 18 U.S.C. § 924(e), adjudicators may...