4 Cir: Rejects Silva-Treviño moral turpitude framework

Following a growing list of courts of appeals, the U.S. Court of Appeals for the Fourth Circuit rejected Matter of Silva-Treviño’s framework for determining whether a crime involves moral turpitude. Prudencio v. Holder, No. 10-2382, slip op. (4th Cir. Jan. 30, 2012) (Traxler, Shedd, and Keenan, JJ.). Judge Keenan wrote the panel’s majority opinion; Judge Shedd dissented.

This case involved an LPR who pleaded guilty to contributing to the delinquency of a minor, Va. Code § 18.2-371. Applying Silva-Treviño’s three-part framework, the IJ held that this offense constituted a CIMT; the BIA affirmed. Prudencio, No. 10-2382, slip op. at 2, 6.

In Silva-Treviño, Attorney General Mukasey, who certified the case to himself from the BIA, altered the longstanding process for determining whether a crime involves moral turpitude. Rather than limit the IJ’s analysis to the categorical and modified categorical approach, the AG added a third prong under which the IJ can consider a wide range of information.

As the Board explained in a subsequent case,

“Pursuant to Matter of Silva-Trevino, the first stage of the analysis employs a categorical approach, under which the criminal statute at issue is examined to ascertain whether moral turpitude is intrinsic to all offenses that have a ‘realistic probability’ of being prosecuted under that statute. If the issue cannot be resolved under the categorical approach, the second stage involves a modified categorical inquiry, which requires inspection of specific documents comprising the alien’s record of conviction to discern the nature of the underlying conviction. Finally, if the record of conviction is inconclusive, the Attorney General has held that because moral turpitude is not an element of an offense, evidence beyond the record of conviction may be considered when evaluating whether an alien’s crime involved moral turpitude.”

Matter of Ruiz-Lopez,
25 I&N Dec. 551, 553 (BIA 2011).

The AG explained that he had the power to identify the proper framework for determining whether a crime involves moral turpitude because the CIMT statutory provision is ambiguous. Specifically, as the Fourth Circuit relays,

“certain language, such as the use of the word ‘convicted’ rather than ‘committed’ at the beginning of the statute, suggests that the inquiry should be categorical and should focus on the statutory elements required for conviction, rather than on the particular facts of an individual crime. He asserted that other language, however, ‘seems to call for, or at least allow, inquiry into the particularized facts of the crime.’In support of this latter proposition, the Attorney General identified two statutory references: (1) the use of the word ‘involving,’ and (2) the language regarding aliens who admit to ‘committing’ certain ‘acts.’”

Prudencio, No.
10-2382, slip op. at 9-10.

The Fourth Circuit disagreed with the AG’s rationale. The “admit to committing certain acts” language, the court explained, is irrelevant “[b]ecause there are no admissions at issue in the present case, and likewise were none at issue in Silva-Treviño….” Prudencio, No. 10-2382, slip op. at 12.

Furthermore, “[t]he word ‘involving’ must be considered in its statutory context…. [It] cannot be divorced from the unitary phrase ‘crime involving moral turpitude’….” Prudencio, No. 10-2382, slip op. at 13. Considering it as part of the “crime involving moral turpitude” phrase, the court added, makes the word “involving” “no more expansive than the use of the word ‘of’ in the term ‘crime of violence.’” Prudencio, No. 10-2382, slip op. at 13.

What’s more, the Fourth Circuit went on, the AG’s position that the term “conviction” in the CIMT statutory provision is used more expansively than “conviction” is used in other INA sections (where it has been interpreted to mean that the IJ must rely solely on the categorical and modified categorical approach to determine whether a particular crime falls into the relevant category of removal offenses) “lacks both logic and statutory support.” Prudencio, No. 10-2382, slip op. at 14.

The bottom line, therefore, is “that the plain language of the moral turpitude statute is not ambiguous.” Prudencio, No. 10-2382, slip op. at 14. Indeed, “the statute unambiguously directs that an adjudicator consider only the conviction itself, and not any underlying conduct.” Prudencio, No. 10-2382, slip op. at 14.

Silva-Treviño is no more in the Fourth Circuit. Applying the categorical and modified categorical approach to the Virginia delinquency statute, the court determined that this is a divisible statute–that is, it punishes some acts that involve moral turpitude and others that do not. Thus, DHS did not satisfy its burden that Prudencio was convicted of a CIMT. Prudencio, No. 10-2382, slip op. at 20, 21.