quick reference chart and notes for determining immigration - ILRC

California Quick Reference Chart and Notes
February 2010
§ N.7 Crimes Involving Moral Turpitude
(For more information, see Defending Immigrants in the Ninth Circuit, Chapter 4,
www.ilrc.org/criminal.php and see
Tooby, Rollin, Crimes Involving Moral Turpitude at www.criminalandimmigrationlaw.com)
IMPORTANT DEVELOPMENT: At the end of 2008, outgoing Attorney General
Mukasey drastically changed the law, holding that an immigration judge may decide to hold
a fact-based inquiry, rather than an inquiry under the categorical approach, to determine
whether a conviction is of a “crime involving moral turpitude” (“CMT”). Matter of Silva-
Trevino, 24 I&N Dec. 687 (AG 2008). But see strategies for preventing this inquiry at Part A.
Further, without ruling on the validity of Silva-Trevino, the Ninth Circuit has decided to
increase the level of deference it accords to Board of Immigration Appeals decisions on
whether an offense is a CMT.
These decisions make it hard to predict precisely which offenses will be held a crime
involving moral turpitude. While important rules remain, until the law becomes more settled
criminal defense counsel must conservatively assume that many offenses involve moral
turpitude. Fortunately, not every conviction of a CMT is fatal to immigration status. To
analyze the effect of a conviction, counsel needs the client’s entire criminal history and some
key facts about his or her immigration status and history. See Parts B and C.
A. Definition of a Crime Involving Moral Turpitude (including Matter of Silva-Trevino)
Because of recent legal developments, at this point it is very difficult to state with
certainty that an offense of conviction will not be classified as a crime involving moral turpitude.
In late 2008 outgoing Attorney General published Matter of Silva-Trevino, supra, which
drastically changed how immigration authorities determine whether an offense of conviction is a
crime involving moral turpitude. Under Silva-Trevino, immigration judges in some cases have
the discretion to delve into the actual conduct of the defendant, rather than concentrating on the
elements of the offense and reviewable record of conviction, as is required under the categorical
approach. If an immigration judge elects to make this kind of inquiry in a case, she might take
testimony from the defendant (now called the “respondent”) in immigration proceedings, as well
as other evidence.
In Silva-Trevino the AG also defined a crime involving moral turpitude as a reprehensible
act with a mens rea of at least recklessness.
N-64 Immigrant Legal Resource Center