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Round Up on Silva Trevino

Published: Mar 30, 2010 7:00 am By: Jenny Pelaez, Immigration Justice Clinic

Immigration Slip Opinion: AILA Amicus's Notes & Comments On Immigration Adjudication

"We were on notice, following the BIA decisions in Gerstenshteyn and Babaisakov, that the Board was mission driven to erode the “categorical approach” as it applied to aggravated felony determinations. Who would have anticipated the sweeping new rule for moral turpitude determinations announced by former Attorney General Mukasey in Matter of Silva Trevino? We suppose we haven't grown cynical enough and we state we were more than a bit surprised with the scope and breadth of the decision. With this left-field decision, the AG took away the one sure thing attorneys and judges have always been able to rely on when analyzing the immigration consequences of a crime: that we apply a categorical approach to determine whether the statute of conviction necessarily requires conduct that falls within the moral turpitude removal grounds. Indeed, the approach originated in ancient CIMT cases like US ex rel. Mylius v. Uhl, 210 F. 860 (2d Cir. 1914), decades before the modern Taylor-Shepard framework was born." ~Guest blogging by Jenny Pelaez, Immigration Justice Clinic, Benjamin N Cardozo School of Law

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