quick reference chart and notes for determining immigration - ILRC

California Quick Reference Chart and Notes
February 2010
For further discussion of the impact of this case in immigration proceedings, see Tooby
and Kesselbrenner, “Living with Silva-Trevino” at www.nortontooby.com. Silva-Trevino will
be challenged in federal courts. The Third Circuit has rejected it. 96
To make matters more unsettled, in 2009 the Ninth Circuit held that it would extend
Chevron deference to published BIA or AG determinations of whether an offense constitutes a
CMT. This means that the court will defer in all cases except where the BIA determination is so
unreasonable as to be “impermissible.” Marmolejo Campos v. Holder, 558 F.3d 903 (9 th Cir. 2007)
(en banc). This also means that the Court might reverse some of its own prior decisions on CMT
in the future, if it finds that they conflict with a reasonable published AG or BIA opinion. (At
this writing the Court has not yet decided whether it will defer to the AG on the key Silva-
Trevino question of whether the categorical approach applies fully to a CMT determination.)
There are still some strong defense options, despite Silva-Trevino.
‣ It is well-established that an offense that requires only criminal negligence does not
constitute a CMT. For example, it has long been held that simple drunk driving, even as a
repeat offense, is not a CMT. See other offenses in the Chart that also should not be held to
involve moral turpitude under any circumstances.
‣ The Board has held that mere offensive touching, enough to violate P.C. § 243(a) or 243(e), is
not a CMT. Under Silva-Trevino the immigration judge may decide to consider evidence
such as police reports and testimony from the noncitizen or victim to decide whether the
offense involved actual violence rather than mere touching. However, where the guilty plea
is specifically to offensive touching, the judge might not be permitted to go beyond the
record; see next point.
‣ Where there is a divisible statute, a specific plea to conduct that is not a CMT ought to
resolve the question and protect the defendant. Silva-Trevino stated that if an offense as
described in the statute is categorically not moral turpitude – e.g., if it is entirely lacking an
element of immoral behavior or fraud – then it cannot be held a CMT. Also, if the record of
conviction decisively identifies elements that do not involve CMT, the immigration judge
should not go on to a fact-based inquiry. 97 Thus for moral turpitude purposes, creating a
vague record of conviction is not the best strategy. To the extent possible, it is far better to
plead to a specific offense that clearly does not involve moral turpitude.
Example: Section § 10851 of the Vehicle Code is divisible as a crime involving moral
turpitude. Taking with permanent intent is a CMT, while taking with temporary intent is
not. Victor and Samuel, two permanent residents, both are charged with § 10851.
96 See Jean-Louis v. Attorney General, 582 F.3d 462 (3d Cir. 2009).
97 “In my view, when the record of conviction fails to show whether the alien was convicted of a crime involving
moral turpitude, immigration judges should be permitted to consider evidence beyond that record if doing so is
necessary and appropriate to ensure proper application of the Act's moral turpitude provisions.” Matter of Silva-
Trevino, 24 I&N Dec. 687, 699 (AG 2008) (emphasis supplied).
Immigrant Legal Resource Center N-65