On June 19, 2015, IRLI filed a supplemental brief (attached here) on behalf of the Federation for American Immigration Reform (FAIR) that was requested by the Board of Immigration Appeals (BIA) in one of the more complex and difficult matters confronting the BIA over the past decade. In 2006, Silva-Trevino, a Mexican national who has lawfully resided in Texas for many years plead no contest to a charge of sexual contact with a minor, a second-degree felony under state law that is also an aggravated felony under federal law. During deportation proceedings in 2007, Silva-Trevino applied to adjust status to lawfully permanent resident (LPR). Many supporters of true immigration reform are not aware of this significant loophole in immigration law that allows criminal aliens convicted of a felony to avoid removal by applying for a green card, if they were “otherwise” qualified to do so.
DHS, however, charged that the sexual contact with a minor conviction was also a “crime involving moral turpitude” (or CIMT in immigration law jargon). Most aliens convicted of a CIMT are inadmissible, even if longtime legal residents, and are barred from eligibility for important immigration benefits, including requests for voluntary departure, cancellation of removal, section 212(h) hardship waivers and family unity waivers of removal, adjustment of status to permanent residence and, most importantly, naturalization as a US citizen. A common feature of these immigration benefits is that Congress specifies in the INA that they can only be granted “in the exercise of discretion”—meaning that not only does the alien have to meet the specific requirements of each benefit statute, but also has to convince the immigration judge that the alien does not lack moral character. The concepts of CIMT and good moral character are closely related in immigration law. Although not widely known outside of the immigration lawyers bar and corps of federal immigration officers, lack of moral character is one of the oldest grounds on which an alien may be deported or denied continued residence in the United States, with the oldest court cases dating to the 1870s.
In his defense against removal to Mexico, Silva Trevino had argued that his state sex crime conviction was not a CIMT. CIMT crimes are not defined in the INA. That means the agency—in this case the BIA, an administrative tribunal within the Department of Justice—is responsible for determining whether a conviction under any one of tens of thousands of state criminal laws is or is not a CIMT. To do so, the BIA has for many decades used a two-part test. A CIMT must be a criminal act that is inherently bad, not merely illegal under law. It also requires some level of intent. The eleven federal appeals courts that hear appeals from BIA decisions do not agree on what that intent must be.
On top of all this complexity, the Supreme Court has ordered immigration officials to restrict their inquiries into the facts of a criminal conviction during a removal proceeding. The Supreme Court has labeled this entirely judicial creation the “categorical approach.” An immigration judge may only look to see if the elements of the state crime and the federal aggravated felony, CIMT, or controlled substance offense match. Because the thousands of state criminal laws on the books were not written with immigration proceedings in mind, frequently they criminalize some action which may have federal immigration consequences, and others which do not, under the section or paragraph of state law. In those cases, the Supreme Court deems the state statute to be “divisible” and the “modified categorical approach” be used. In “divisible” cases, immigration judges can refer to the facts in official “records of conviction” to see if the two crimes are a “categorical” match. If there is not a match, then under both “approaches” the criminal alien cannot be found removable nor denied various immigration benefits.
Silva-Trevino claimed he did not commit a CIMT—and thus could apply for a green card notwithstanding his conviction for felony sexual contact with a minor, because in Texas a person could hypothetically be convicted without knowing the actual age of the minor who was molested, and thus not have the intent to contact the minor in a criminal manner. Under the categorical approach, this defense to criminal inadmissibility is referred to as the “least culpable” standard.
The immigration judge agreed that even though the facts indicated the act Silva-Trevino committed was a CIMT, only the elements of the Texas statute could be considered. The “least culpable” hypothetical conviction under those elements would not require intent to engage in sexual contact knowing the victim was a minor; thus Silva-Trevino could not be removed as inadmissible for committing a CIMT, allowing Silva Trevino to apply for a green card for which he was otherwise eligible, and thereby waiving removal based on his conviction as an aggravated felon.
The BIA agreed. But in 2008 then-Attorney General Mukasey, concerned that this policy was allowing criminal aliens lacking good moral character—in this case, an aggravated felon convicted of a sex crime against a minor—to avoid deportation, invoked his authority to replace a BIA decision with his own policy views, and issued a new opinion creating a three-step approach. For CIMT determinations, where neither the categorical or modified categorical approach provided enough information to match the state and federal offense, Mukasey allowed an immigration judge to ask the alien or the government to provide additional factual evidence from the case.
The BIA applied that new rule and found Silva-Trevino removable. He appealed and more than five years later (while he remained free in Texas) the Fifth Circuit in 2014 overturned the BIA, stating that it could not modify the categorical approach administratively where it was mandated by the Supreme Court. In April 2015, then Attorney-General Eric Holder withdrew the Mukasey opinion, and asked the government, the alien, American Immigration Lawyers Association and FAIR for supplemental briefing on three points: How to determine if a state crime is a CIMT; whether a record of conviction can be considered under the modified categorical approach; and whether in immigration benefits applications that require immigration judge discretion, a heightened evidentiary standard can be used.
On behalf of FAIR, IRLI concluded that the BIA is forced by Supreme Court precedent to use the categorical/modified categorical approach in removal proceedings. Second, IRLI concluded that where the state statute is divisible, under the modified categorical approach, the IJ and BIA can go beyond the examples of approved documents provided by the Supreme Court for domestic criminal cases, and use a catch-all federal regulation to consider additional documents that meet the federal “Woodley” standard for clear and convincing evidence of removability. Third, IRLI emphasized the major differences between removal proceedings—where the alien is charged and is detainable during proceedings—and immigration benefits applications—where the request of benefits is voluntary and the alien is required to show why a favorable exercise of discretion should be made and the applicable test is a balancing of the favorable and adverse factors—a quintessential factual inquiry. This test is the converse of the categorical approach, and an affirmative showing of moral character is required for favorable discretion in most cases. Where a sexual offense involving a minor CIMT conviction could bar approval of the immigration relief benefit, IRLI recommended that the age of the minor be treated as a “circumstance-specific” inquiry, which was held to be an exception to the categorical approach in the 2009 Supreme Court case, Nijhawan v. Holder.
IRLI Senior Counsel Mike Hethmon, author of the FAIR brief, commented that apart from its disturbing illustration of the extraordinarily bureaucratic and delay-prone series of adjudications that must occur before the government can remove even the most egregious of criminal aliens, the Silva-Trevino case underlines the under-utilized importance of the body of law barring aliens lacking moral character from entering, residing in, or becoming citizens of the United States.