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11th Circuit Rejects Attorney General Guidelines for Determining whether a Conviction is a CIMT

Published: Oct 13, 2011 11:30 am By: Matthew L. Kolken

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 alien’s 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.

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