When an alien is considered for deportation proceedings, it becomes painfully important to identify whether his or her record contains any crimes of moral turpitude.
This means that any criminal conviction which classifies an alien as removable is a battleground in any deportation proceeding, since moral turpitude is truly a legal term of art. But the Fifth Circuit doesn't believe this requires much wondering, since Congress has spoken clearly on the issue.
So in Silva-Trevino v. Holder, why does the court stick to only the record of conviction?
Immigration Board Used New Method
Cristoval Silva-Trevino appealed the Board of Immigration Appeals' decision that he was indeed convicted of a crime of moral turpitude because the Attorney General used a method that departed from the relevant statute.
Silva-Trevino was charged with sexual indecency with a minor in Texas, which he admits is an aggravated felony for removal purposes. But the x-factor is whether it is also a crime of moral turpitude that would bar an immigration judge from changing his status in the future. A child sex offense conviction doesn't exactly scream "good moral character."
Holder used a new test for finding moral turpitude that looked past Silva-Trevino's conviction and presented extrinsic evidence to resolve the moral turpitude question.
The Fifth Circuit flatly denies that this is a proper interpretation of federal law, stating that the law regarding convictions of moral turpitudinous crimes is unambiguous. Similarly, in Taylor v. U.S., the U.S. Supreme Court called for a "categorical" approach to viewing convictions when determining if it is a specific type of crime.
Although that decision dealt with "Three Strikes" type sentence enhancements, the rule is typically the same: don't plumb the record, let the convictions speak for themselves.
The Fifth Circuit isn't alone in thinking this way. The Third, Fourth, Ninth, and Eleventh Circuits have decided in prior cases that the language of the Immigration and Nationality Act § 212 is unambiguous and is therefore repellant to this additional external test for moral turpitude.
Two Circuits have come down the other way:
- The Eighth Circuit found that the approach warrants deference to the Attorney General's reasonable interpretation.
- The Seventh Circuit gave Holder's approach deference under the Chevron doctrine.
For immigration practitioners in the Fifth Circuit, this may prevent a bit of a strange line of precedent. On the one hand, extrinsic evidence may be very useful in proving that your client is not a morally bankrupt child rapist and that this charge was part of a plea bargain from a separate charge. On the other hand, if extrinsic evidence of your client's crimes may truly be damning to his or her case, this ruling may be a godsend.
Until SCOTUS speaks on this issue, viewing convictions on their faces will be the law in the Fifth Circuit, which may or may not help Silva-Trevino when he returns to the Board.
- Mexican Law Determines Man's U.S. Citizenship (FindLaw's U.S. 5th Circuit Blog)
- 10 Years of Lies Undermine 'Good Moral Character' Assertion (FindLaw's U.S. 5th Circuit Blog)
- Fifth Circuit: SCOTUS Overruled Tickles (FindLaw's U.S. 5th Circuit Blog)
- Florida Battery a Violent Crime for Immigration Sentencing (FindLaw's U.S. 11th Circuit Blog)