quick reference chart and notes for determining immigration - ILRC

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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
California Quick Reference Chart and Notes February 2010 Victor pleads to § 10851 with a vague record of conviction, reciting the language of the statute in the disjunctive. Samuel pleads specifically to a temporary taking. When Victor gets to immigration court, the judge decides that since the vague record of conviction does not establish whether the taking was temporary or permanent, he is permitted to go beyond the record under Silva-Trevino, just for purposes of determining whether the offense is a CMT. The judge may examine the probation report, or take testimony from Victor. Based on evidence there, he can hold that Victor intended a permanent taking and that his conviction is a CMT. When Samuel and his specific record get to the same immigration judge, the judge decides that the moral turpitude question is resolved by the record of conviction: the plea bargain clearly establishes that Samuel pled guilty to a temporary taking. Therefore Silva-Trevino does not permit the judge to go beyond the record, and she must end the inquiry and find that Samuel does not have a moral turpitude conviction. ‣ If the immigration court does conduct a broad factual inquiry under Silva-Trevino, it may use the information only to determine if the offense involves moral turpitude, and not to determine if the conviction comes within other grounds of inadmissibility or deportability. 98 Example: Mike pleads guilty to P.C. § 243(e), spousal battery. If this offense is committed with mere “offensive touching,” it is neither a crime involving moral turpitude (CMT), nor a deportable crime of domestic violence. If instead it is committed with actual violence, it may be held a CMT and a deportable crime of domestic violence. 99 Mike’s defender creates a vague record of conviction in which Mike pleads to the language of the statute, which does not establish whether the offense involved actual violence or an offensive touching. Under Silva-Trevino, the judge may decide to go beyond the vague record that is reviewable under the modified categorical approach, and make a factual inquiry into Mike’s conduct. The inquiry might lead her to find that real violence was involved and the offense is a CMT. However, the judge may not go beyond the reviewable record to determine whether the conviction comes within another deportability or inadmissibility ground. For example, the judge must only consider the reviewable record of conviction when she determines whether the government has met its burden of proving that the offense is a deportable crime of domestic violence. Since the vague record does not establish that the offense involved actual violence, she will find that Mike is not deportable under the domestic violence ground. 98 “This opinion does not, of course, extend beyond the moral turpitude issue--an issue that justifies a departure from the Taylor/Shepard framework because moral turpitude is a non-element aggravating factor that ‘stands apart from the elements of the [underlying criminal] offense.’” Matter of Silva-Trevino, 24 I&N Dec. 687, 699, 704 (AG 2008). 99 See discussion of Calif. P.C. § 243(e) and Matter of Sanudo, 23 I&N Dec. 968 (BIA 2006), in § N. 9 Domestic Violence. N-66 Immigrant Legal Resource Center
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