In re Silva-Trevino
| Decision Date | 12 October 2016 |
| Docket Number | Interim Decision #3875 |
| Parties | Matter of Cristoval SILVA-TREVINO, Respondent |
| Court | U.S. DOJ Board of Immigration Appeals |
(1) The categorical and modified categorical approaches provide the proper framework for determining whether a conviction is for a crime involving moral turpitude.
(2) Unless the controlling case law of the governing Federal court of appeals expressly dictates otherwise, the realistic probability test, which focuses on the minimum conduct that has a realistic probability of being prosecuted under the statute of conviction, should be applied in determining whether an offense is a categorical crime involving moral turpitude.
(3) Under the "minimum reading" approach applied by the United States Court of Appeals for the Fifth Circuit, the respondent's conviction for indecency with a child under section 21.11(a)(1) of the Texas Penal Code is not for a categorical crime involving moral turpitude.
(4) An alien who has engaged in misconduct involving sexual abuse of a minor is not required to make a heightened evidentiary showing of hardship or other factors to establish that an application for relief warrants a favorable exercise of discretion.
FOR RESPONDENT: Lisa Brodyaga, Esquire, San Benito, TX
GRANT, Board Member:
This case is before us pursuant to Matter of Silva-Trevino ("Silva-Trevino II"), 26 I&N Dec. 550 (A.G. 2015), in which the Attorney General vacated Matter of Silva-Trevino ("Silva-Trevino I"), 24 I&N Dec. 687 (A.G. 2008), and remanded the record to the Board for further proceedings and the entry of a new decision. In his decision, the Attorney General directed us to develop a uniform standard for determining whether a particular criminal offense is a crime involving moral turpitude. Pursuant to his directive, we asked the parties and amici curiae to provide us with supplemental briefs regarding the issues raised in the Attorney General's decision.1
We conclude that the categorical and modified categorical approaches provide the proper framework for determining when a conviction is for a crime involving moral turpitude. Applying this framework to the respondent's case, we hold that he is not inadmissible as an alien convicted of a crime involving moral turpitude. The record will be remanded for further consideration of his application for relief.
The respondent is a native and citizen of Mexico who was admitted to the United States as a lawful permanent resident in 1962. On October 6, 2004, he pled no contest to the offense of indecency with a child under section 21.11(a)(1) of the Texas Penal Code. The criminal court accepted the plea, deferred further proceedings, fined the respondent $250, placed him under community supervision for a period of 5 years, and ordered him to attend sex offender counseling sessions.
Based on this conviction, the Department of Homeland Security ("DHS") charged the respondent with removability as an alien who has been convicted of an aggravated felony for sexual abuse of a minor under sections 101(a)(43)(A) and 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. §§ 1101(a)(43)(A) and 1227(a)(2)(A)(iii) (2000). The respondent conceded that he was removable as charged, and he requested adjustment of status to that of a lawful permanent resident. In a decision dated February 9, 2006, the Immigration Judge found that the respondent is ineligible for adjustment of status because he has been convicted of a crime involving moral turpitude, which renders him inadmissible under section 212(a)(2)(A)(i)(I) of the Act, 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2006).
The respondent appealed from that decision. On August 8, 2006, we found that his conviction did not render him inadmissible because section 21.11(a)(1) of the Texas Penal Code criminalized at least some conduct that does not involve moral turpitude and the record of conviction did not contain any information about the conduct underlying his offense. We remanded the record to the Immigration Judge for further proceedings.
On July 10, 2007, the Attorney General directed us to refer our decision to him pursuant to 8 C.F.R. § 1003.1(h)(1)(i) (2007). The Attorney General subsequently vacated our decision and set forth a framework for determining when a conviction is for a crime involving moral turpitude inSilva-Trevino I. Specifically, he instructed Immigration Judges and the Board (1) to examine the statute of conviction under the categorical approach and determine whether there was a "realistic probability" that the statute would be applied to conduct not involving moral turpitude; (2) if the categorical approach does not resolve this question, to look to the record of conviction under the modified categorical approach; and (3) in the event the record of conviction is inconclusive, to consider any relevant evidence outside the record of conviction to resolve the moral turpitude question. Id. at 696-704.
Applying this framework to the facts of the respondent's case, the Attorney General first addressed whether there was a "realistic probability" that the Texas statute would be applied to conduct that does not involve moral turpitude. Id. at 705-08.2 He determined that in cases involving sexual misconduct with a child, "it is proper to make a categorical finding that a defendant's conduct involves moral turpitude when that conduct results in a conviction on the charge of intentional sexual conduct with a person the defendant knew or should have known was a child." Id. at 706-07. Further, he stated that the "inclusion of a mistake-of-age defense" would ensure that "individuals will be convicted only if they willfully or knowingly directed sexual conduct towards someone they knew, or reasonably should have known, was a child." Id. at 707 (citing 18 U.S.C. § 2243(c)(1) (2006)).
After analyzing section 21.11(a)(1) of the Texas Penal Code, which contained no mistake-of-age defense on its face, the Attorney General concluded that there was a realistic probability that it would be applied to reach conduct that does not involve moral turpitude. Id. at 708. He cited to Johnson v. State, 967 S.W.2d 848, 849 (Tex. Crim. App. 1998) (en banc), where the court rejected a 19-year-old defendant's contention that he should not be convicted under section 21.11(a)(1) because the victim and her friend stated that the victim was over 17, and she appeared older than her age. The Attorney General remanded the record to the Board because "where, as here, the categorical inquiry does not resolve the moral turpitude question, an adjudicator should engage in a modified categorical inquiry, considering whether the facts of the alien's prior conviction in fact involved moral turpitude." Matter of Silva-Trevino I, 24 I&N Dec. at 708.
On remand, we returned the record to the Immigration Judge to apply the new analytical framework. After considering evidence extrinsic to the record of conviction, he found that the respondent knew that the victim ofhis crime was a minor. The Immigration Judge therefore concluded that the respondent had been convicted of a crime involving moral turpitude and was ineligible for adjustment of status. We affirmed that decision. The respondent filed a petition for review with the United States Court of Appeals for the Fifth Circuit, in whose jurisdiction this case arises.
In Silva-Trevino v. Holder, 742 F.3d 197, 200-01 (5th Cir. 2014), the Fifth Circuit held that the phrase "convicted of" in section 212(a)(2) of the Act precludes an ad3judicator from inquiring into evidence outside the record of conviction.3 Because the Board had looked beyond the record of conviction to conclude that the respondent's conviction was for a turpitudinous offense, the court vacated our decision and remanded the record for further proceedings.
On April 10, 2015, the Attorney General issued Silva-Trevino II. In view of the decisions of the five courts of appeals that rejected the procedural framework set out in Silva-Trevino I, as well as intervening Supreme Court decisions that "cast doubt on the continued validity of the opinion," the Attorney General vacated the prior decision in its entirety. Matter of Silva-Trevino II, 26 I&N Dec. at 553. He remanded the record for the Board "to develop a uniform standard for the proper construction and application of section 212(a)(2) of the Act and similar provisions in light of all relevant precedent and arguments." Id. According to the Attorney General, the Board may address the following issues:
The Attorney General stated that his decision to vacate Silva-Trevino I in its entirety did not mean that he disapproved of every aspect of that decision, and he noted that nothing in his order was "intended to affect Board determinations that an offense entails or does not entail 'reprehensible conduct and some form of scienter' and is or is not a crime involving moral turpitude for that reason." Id. at 553 n.3 (quoting Silva-Trevino I, 24 I&N Dec. at 706 n.5).4
We have been directed to develop a...
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