The 11th Circuit Court of Appeals has rejected the Attorney General's analysis in Matter of Silva-Trevino, 24 I. &N. Dec. 687 (A.G. 2008), which permits an Immigration Judge to consider evidence beyond the record of conviction to determine whether a conviction is a crime involving moral turpitude (CIMT). See Fajardo v. U.S. Att'y Gen., 10/12/11.
Silva-Trevino sets forth new guidelines for analyzing whether specific crimes are CIMTs. Pursuant to the decision immigration judges and the Board of Immigration Appeals are required to:
(1) look first to the statute of conviction under the categorical inquiry;
(2) if the categorical inquiry does not resolve the question, look to the alienís record of conviction; and
(3) if the record of conviction does not resolve the inquiry, consider any additional evidence the adjudicator determines is necessary or appropriate to resolve accurately the moral turpitude question.
24 I. & N. Dec. at 704
The 11th Circuit wisely reasoned that Congress "unambiguously intended adjudicators to use the categorical and modified categorical approach to determine whether a person was convicted of a crime involving moral turpitude."
As such, the Court ruled that it was a reversible error of law to consider evidence beyond the record of conviction to determine whether a specific conviction is a crime involving moral turpitude.
Score one for the little guys.
Click here to read the full decision.
About The Author
Matthew Kolken is a trial lawyer with experience in all aspects of United States Immigration Law including Immigration Courts throughout the United States, and appellate practice before the Board of Immigration Appeals, the U.S. District Courts, and U.S. Courts of Appeals. He is admitted to practice in the courts of the State of New York , the United States District Court for the Western District of New York, the United States Court of Appeals for the Second Circuit, and is a member of the American Immigration Lawyers Association (AILA).
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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