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Bloggings on Deportation And Removal

by Matthew Kolken

4th Circuit joins 3rd, 8th and 11th Rejecting Attorney General's Silva-Trevino CIMT Test

Yesterday, the 4th Circuit Court of Appeals joined the 3rd, 8th, and 11th circuits in rejecting the Attorney General's decision in Matter of Silva-Trevino, 24 I & N Dec. 687, 688-90 (A.G. 2008). See Prudencio v. Holder, Jan. 30, 2012.

The 4th rejected the three-step procedural framework for determining whether a particular conviction is a crime involving moral turpitude because the third step:

allows an immigration judge to rely on documents of questionable veracity as "proof" of an alien’s conduct. These documents, such as police reports and warrant applications, often contain little more than unsworn witness statements and initial impressions. Indeed, these materials are designed only to permit a determination of probable cause. Further, because these submissions are generated early in an investigation, they do not account for later events, such as witness recantations,amendments, or corrections. To confer upon such materials the imprimatur of fact, even for the narrow application of removal proceedings involving questions of moral turpitude, accords these documents unwarranted validity.

The 4th declined to sanction the factual approach citing the Supreme Court: "the practical difficulties and potential unfairness of a factual approach are daunting." Shepard, 544 U.S. at 20;Taylor, 495 U.S. at 601.

The Silva-Trevino factual approach permits an Immigration Judge (IJ) to consider otherwise impermissible evidence to determine that a conviction is a crime involving moral turpitude with adverse immigration consequences attaching. Or in other words, if all else fails, throw in the kitchen sink.

This approach enables IJs to impose their own personal and political biases into legal determinations by re-litigating criminal cases in a vacuum, rather than objectively reviewing criminal statutes to determine what immigration consequences, if any, stem from a particular conviction. The end result, individuals that are not deportable are being deported.

The kitchen sink approach was created because the long established framework for determining whether Silva-Trevino's plea of no contest to “indecency with a child” is a crime of moral turpitude did not end in Silva-Trevino's deportation. As a result, a new test was created that would procure the desired result.

As we learned in law school: bad facts make bad law.

Thankfully, we have the Judicial Branch to reign in unlawful interpretations of the law as proscribed by Congress.

Score one for the rule of law.


The decision in Matter of Silva-Trevino, was issued by Attorney General Mukasey not Holder.

Commentary regarding Attorney General Holder has been edited, along with the egg on my face.

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.