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The BIA takes a third crack at Silva-Trevino and the categorical approach for CIMTs

In the continuing saga of Matter of Silva-Trevino, 26 I&N Dec. 826 (BIA 2016), the BIA was again asked to determine whether Texas Penal Code 21.11(a)(1) (indecency with a child) is a crime involving moral turpitude. This case has had a long history and has been the focal point of the Board's CIMT categorical approach analysis for eight years. The case has revolved around the difficult questions of how and when to apply the categorical and modified categorical approach.

In Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), the Attorney General created a three-step framework for determining whether any crime of conviction involves moral turpitude: 1) examine the statute of conviction 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 did not resolve the question, look to the record of conviction under the modified categorical approach; and 3) if the record of conviction was inconclusive, consider any relevant evidence outside the record of conviction.

The A.G. also noted, importantly, that whether indecency with a child was categorically a CIMT could turn on whether the statute of conviction (or binding state case law) provided for a mistake-of-age defense. In other words, if there is no such defense, then the individual could have been convicted for conduct against a person he did not know was a minor, and if so, the statute encompasses non-turpitudinous conduct.

The Board remanded the case to the immigration judge who, upon reaching step 3 of the A.G.’s analysis, discovered extrinsic evidence indicating that as a matter of fact, Silva-Trevino knew his victim was a minor. The Board affirmed this decision which was then appealed to the Fifth Circuit.

The Fifth Circuit overturned the Board and step 3 of the A.G.’s analysis, in Silva-Trevino v. Holder, 742 F.3d 197 (5th Cir. 2014), as inconsistent with Supreme Court precedent and with the nature of the categorical approach.

The A.G. subsequently vacated his decision (something of a formality, since the decision arose in the Fifth Circuit) and asked the Board to develop a uniform standard for applying the categorical approach to CIMT analysis.

The Board first reaffirmed that categorical/modified categorical analysis does apply to questions of crimes involving moral turpitude. It then noted that it would apply the “realistic probability test” to determine whether hypothetical conduct was likely to be prosecuted under a given statute. However, the Board pointed out that some circuits, including the Fifth, use a more alien-friendly “least culpable conduct hypothetically necessary” or “minimum reading” test.

The Board then reaffirmed the A.G.’s rule from Silva-Trevino I that the non-availability of a mistake-of-age defense could render the statute categorically overbroad, since knowledge of minority must necessarily be proven to establish moral turpitude. The Board then cited binding Texas case law to indicate that Texas has no mistake-of-age defense. In other words, because a conviction for indecency with a child would be upheld regardless of the perpetrator’s knowledge of the victim’s minority, as a categorical matter not all convictable conduct under the statute was morally turpitudinous. Because the alien did not have a CIMT, he was permitted to proceed with his application for adjustment of status.

The Board also addressed the Attorney General’s question whether a heightened discretionary standard should apply on remand because of the sexual offense. The Board declined to apply such a standard, asserting that the IJ’s discretion was sufficient to deny adjustment of status if the actual conduct underlying the conviction was egregious.

Commentary: Despite receiving deference from a few courts, the A.G.’s three-step approach was an illogical and self-contradictory hybrid of mutually exclusive analyses. If step 3 was permissible, why have step 1 at all? Why pretend to be limited to the statute of conviction if you're ultimately going to look at the facts anyway? This type of factual inquiry was contrary to the nature of the categorical approach which looks only at the statute of conviction, resolving all convictions under the same statute the same way (hence the word “categorical”). Good riddance to the Silva-Trevino analysis as it was nearly impossible to expect immigration judges to understand the categorical approach when the Attorney General clearly did not get it.

It is interesting to note that, while the Board points out that the Fifth Circuit’s “minimum reading” test is a minority view, it would have made no difference in this case even if the Board had applied the “realistic probability” test. The difference between the two involves the degree to which the hypothetical conduct proposed is actually hypothetical.

To put it more simply, categorical analysis often involves a suggestion of conduct the alien could have been convicted of under the statute, disregarding what he actually did. The realistic probability test requires him to at least point to a real-life situation (including his own) to prove such conduct would actually be the subject of prosecution. (The hypotheticals are often fairly entertaining, frequently involving poisoning and, recently in the Fifth Circuit, suffocating an individual by recklessly shoveling dirt onto her face while doing yard work.).

Here, however, although the Department of Homeland Security asserted that the indecency with a child statute would never be applied to non-sexual intercourse conduct, the Board was able to cite to several actual cases that involved mere touching. This would have satisfied even the higher “realistic probability” test.

One last comment: It is refreshing to see the Board for once not attempt to impose a heightened discretionary standard, this time for sexual offenses and adjustment of status relief. In a related context involving inadmissibility waivers under INA Section 212(h), the A.G., by decision and then by regulation, established a heightened discretionary standard for “violent or dangerous crimes,” requiring aliens to show their deportation will effect a greater degree of hardship. This is maddening to practitioners and judges alike because 1) Congress already established by statute a level of hardship that must be shown (so a regulatory burden enhancement is likely ultra vires). 2) Theoretically all crimes are either “violent or dangerous” so the standard knows no bounds. Indeed, I know of no crime that the Board has not found to be “violent or dangerous” when given the chance. And 3) even if the alien is statutorily eligible for relief, almost all types of relief are discretionary, which means the judge is free to deny it anyway if the crime is serious. To paraphrase a Fifth Circuit justice from a recent oral argument, why are we so concerned with impeding aliens from getting into the room where you beg for mercy?

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