11 Cir rejects Silva-Treviño moral turpitude framework

The U.S. Court of Appeals for the Eleventh Circuit recently rejected the framework for determining whether a crime involves moral turpitude announced in Matter of Silva-Treviño, 24 I&N Dec. 687 (A.G. 2008). Sanchez Fajardo v. Att’y Gen., Nos. 09-12962 and 09-14845, slip op. (11th Cir. Oct. 12, 2011) (Barkett, Marcus, and Restani, JJ.). Judge Barkett wrote the court’s opinion.

This case involved an LPR who was convicted of false imprisonment under Florida Stat. § 787.02. After leaving the United States and returning through the Miami airport, DHS initiated removal proceedings charging him as inadmissible pursuant to INA § 212(a)(2)(A)(i)(I) for having been convicted of a crime involving moral turpitude. Sanchez Fajardo, slip op. at 2.

The court first summarized its history of determining moral turpitude by using the categorical or modified categorical approaches. Under the categorical approach, a court examines only “‘the inherent nature of the offense, as defined in the relevant statute, rather than the circumstances surrounding a defendant’s particular conduct.’” Sanchez Fajardo, slip op. at 3 (quoting Itani v. Ashcroft, 298 F.3d 1213, 1216 (11th Cir. 2002)).

The modified categorical approach applies somewhat more expansively. As the court explained, “If the statutory definition of a crime encompasses some conduct that categorically would be grounds for removal as well as other conduct that would not, then the record of conviction—i.e., the charging document, plea, verdict, and sentence—may also be considered.” Sanchez Fajardo, slip op. at 3.

Silva-Treviño (in)famously allows IJs to look beyond the record of conviction when it is unclear whether the crime involved moral turpitude. Following Silva-Treviño, the BIA affirmed the IJ’s “consider[ation] and reli[ance] upon extraneous information outside the record of his false imprisonment conviction….” Sanchez Fajardo, slip op. at 5.

The Eleventh Circuit disagreed. Sanchez Fajardo, slip op. at 15. “[C]onsidering evidence beyond the record of Sanchez Fajardo’s false imprisonment conviction to determine that he had been convicted of a crime involving moral turpitude,” the court held, was erroneous. Sanchez Fajardo, slip op. at 15.

The reason? Congress, in enacting the portion § 212(a)(A)(i)(I) applicable to Sanchez Fajardo (conviction for a CIMT) clearly explained what was required to be inadmissible: a conviction for a crime involving moral turpitude. “[O]n no less than five occasions,” the court explained, the Eleventh Circuit “has applied the categorical or modified categorical approach to determine whether convictions were convictions of crimes involving moral turpitude.” Sanchez Fajardo, slip op. at 9-10.

Congress is presumed to have known that. “[W]hen Congress incorporated the language premising inadmissibility on whether a person was ‘convicted’ of a crime involving moral turpitude into the INA, it was presumably aware that this language had been interpreted to require the application of a categorical and modified categorical approach.” Sanchez Fajardo, slip op. at 11. If Congress wants to change that interpretation, “it could easily have amended the statute to allow adjudicators to consider the actual conduct underlying a conviction.” Sanchez Fajardo, slip op. at 12. But, of course, it has not done that.

Importantly, the court dismisses the government’s argument that the word “involving” is ambiguous. It is not, the court determines, because “involving” is part of the term of art “crime involving moral turpitude.” Sanchez Fajardo, slip op. at 13. None of these words can be segregated from the others.

Because the conviction for a crime involving moral turpitude ground of inadmissibility is not ambiguous, the court is not required to defer to the BIA’s interpretation of the phrase under Chevron, U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), as the government urged. Sanchez Fajardo, slip op. at 6.

On an interesting note, the court left open the possibility that the admissions prongs of § 212(a)(2)(A)(i)(I) (that a person admitted to having committed a CIMT or admitted committing the acts that constitute the essential elements of a CIMT) might be ambiguous. Sanchez Fajardo, slip op. at 12. If these prongs are ambiguous (importantly, the court neither suggests that they are or that they are not), then Chevron deference might be required regarding those sections of the CIMT basis of inadmissibility. 

Perhaps because the court leaves this question for another day it does not explicitly reject Silva-Treviño. In practice, though, this case suggests that Silva-Treviño is no longer relevant in the Eleventh Circuit when DHS charges a person as inadmissible for having been convicted of a crime involving moral turpitude.

This decision aligns the Eleventh Circuit with the Third and Eighth Circuits that have announced, since Silva Treviño, that the CIMT provision unambiguously requires use of the categorical or modified categorical approaches. Sanchez Fajardo, slip op. at 14. It’s worth noting that other circuits, including the Tenth Circuit, have also rejected Silva-Treviño, at least in some contexts.