Matter of Silva-Trevino
| Decision Date | 07 November 2008 |
| Docket Number | File A013 014 303.,Interim Decision No. 3631. |
| Parties | Matter of Cristoval SILVA-TREVINO, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
BEFORE THE ATTORNEY GENERAL (November 7, 2008)
On July 10, 2007, pursuant to 8 C.F.R. § 1003.1(h)(1)(i) (2007), Attorney General Gonzales directed the Board of Immigration Appeals to refer to him for review its decision in this matter. For the reasons set forth in the accompanying opinion, I vacate the Board's decision and remand this matter for further proceedings in accordance with the opinion.
The issue in this case is whether respondent's conviction under a Texas statute that criminalizes acts of "indecency with a child" should be deemed a conviction for a "crime involving moral turpitude" that renders respondent inadmissible, and therefore ineligible for discretionary relief from deportation, under the Immigration and Nationality Act. See section 212(a)(2) of the Act, 8 U.S.C. § 1182(a)(2) (2006). The Board of Immigration Appeals and the Federal courts have long struggled in administering and applying the Act's moral turpitude provisions, and there now exists a patchwork of different approaches across the nation. My review of this case presents an opportunity to establish a uniform framework for ensuring that the Act's moral turpitude provisions are fairly and accurately applied.
There are a few basics on which the Board and the Federal courts have generally agreed. To begin with, they generally agree that in deciding whether an alien's prior criminal conviction constitutes a conviction for a crime involving moral turpitude—that is, whether moral turpitude "necessarily inheres" in a violation of a particular State or Federal criminal statute, Matter of Torres-Varela, 23 I&N Dec. 78, 84 (BIA 2001)—immigration judges and the Board should engage in a "categorical" inquiry and look first to the statute of conviction rather than to the specific facts of the alien's crime. Where this categorical inquiry does not establish that an alien's prior crime necessarily involved moral turpitude, the Board and most Federal courts permit some inquiry into the particular facts of the alien's prior offense. This secondary inquiry is sometimes referred to as a "modified" categorical analysis.
Although each of the Federal courts of appeals has endorsed some form of this two-step categorical inquiry (and the Board typically employs the form endorsed by the circuit in which a case arises), the courts have not uniformly applied it. Instead, courts have applied a wide range of approaches with respect to both prongs of the test, resulting in a patchwork of conflicting legal and evidentiary standards. Moreover, many of these approaches do not adequately perform the function they are supposed to serve: distinguishing aliens who have committed crimes involving moral turpitude from those who have not. These shortcomings point to the need for a new, standardized approach—one that accords with the statutory text, is administratively workable, and furthers the policy goals underlying the Act.
The Act delegates to the Department of Justice—the agency charged with interpreting and implementing many of its provisions—the authority to craft such an approach. See section 103(a)(1) of the Act, 8 U.S.C. § 1103(a)(1) (2006) (); National Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005) (). Accordingly, this opinion establishes an administrative framework for determining whether an alien has been convicted of a crime involving moral turpitude.1 First, in evaluating whether an alien's prior offense is one that categorically involves moral turpitude, immigration judges must determine whether there is a "realistic probability, not a theoretical possibility," 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. Cf. Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007).
Second, where this categorical analysis does not resolve the moral turpitude inquiry in a particular case, an adjudicator should proceed with a "modified categorical" inquiry. In so doing, immigration judges should first examine whether the alien's record of conviction—including documents such as the indictment, the judgment of conviction, jury instructions, a signed guilty plea and the plea transcript—evidences a crime that in fact involved moral turpitude. When the record of conviction is inconclusive, judges may, to the extent they deem it necessary and appropriate, consider evidence beyond the formal record of conviction. The goal of this inquiry is to discern the nature of the underlying conviction where a mere examination of the statute itself does not yield the necessary information; it is not an occasion to relitigate facts or determinations made in the earlier criminal proceeding.
Because the Board did not have the benefit of this analysis when it issued the opinion below, I vacate the decision in this case and remand for further proceedings consistent with this opinion.
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, respondent entered a plea of no contest to the criminal offense of "indecency with a child" under Title 5, Section 21.11(a)(1) of the Texas Penal Code, a second-degree felony punishable by a 2- to 20-year prison term. Matter of Cristoval Silva-Trevino, A13 014 303 at 1 (BIA Aug. 8, 2006) (hereinafter "Bd. Op."); Matter of Cristoval Silva-Trevino, A13 014 303 at 3 (hereinafter "IJ Dec."). Section 21.11(a)(1) makes it illegal for a person to engage in "sexual contact" with a child younger than 17 years old who is not the person's spouse, unless the person is "not more than three years older than the victim and of the opposite sex." Texas Penal Code § 21.11(a)(1), (b)(1) (2003). The statute defines "sexual contact" to mean "any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child" or "any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person," if "committed with the intent to arouse or gratify the sexual desire of any person." Id. § 21.11(c). The State court found that there was sufficient evidence to accept respondent's plea and further found that respondent committed the offense in question on April 13, 2002, when the respondent was approximately 64 years old. IJ Dec. at 3. The court then deferred further proceedings, fined respondent $250, placed him under community supervision for a period of 5 years, and ordered him to attend sex offender counseling sessions. Id. at 3-4.
In November 2005, the Department of Homeland Security initiated removal proceedings against respondent on the ground that he had been convicted of an "aggravated felony." Section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2006). The Immigration Judge held, inter alia, that respondent's State conviction constituted a conviction for "sexual abuse of a minor"—an "aggravated felony" that renders an alien removable under section 101(a)(43)(A) of the Act, 8 U.S.C. § 1101(a)(43)(A) (2006). IJ Dec. at 5-6.
Respondent then requested discretionary relief from removal through adjustment of status to lawful permanent resident under section 245(a) of the Act, 8 U.S.C. § 1255(a) (2006). Respondent contended that his "aggravated felony" conviction did not bar adjustment of status because the conviction did not fall within one of the specific grounds for inadmissibility listed in section 212(a)(2) of the Act, one of which is conviction of a crime involving moral turpitude. IJ Dec. at 9-12. Respondent argued that his State conviction should not be considered a conviction for a crime involving moral turpitude because (1) both the Board and the United States Court of Appeals for the Fifth Circuit focus on whether the entire category of offenses covered by a State criminal statute involves moral turpitude; and (2) the Texas statute under which he...
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