Without fanfare and with only the stroke of a pen, Attorney General Eric Holder made an enormous contribution to the rule of law last Friday when he vacated Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), a much criticized decision by Attorney General Michael Mukasey about the proper means of analyzing the crimes involving moral turpitude basis of inadmissibility. Matter of Silva-Trevino, A013-014-303 (A.G. April 10, 2015) (read the informal order as originally distributed here; read the formal decision here).

Under this first step, the BIA must determine if moral turpitude necessarily inheres in all offenses which have a “realistic probability” of being prosecuted under the statute of conviction. Matter of Silva-Trevino, 24 I&N Dec. 687, 696-97 (A.G. 2008) (for more on Matter of Silva-Trevino, see here and here). Put another way, the realistic probability analysis asks whether every version of the crime that a prosecutor would realistically prosecute necessarily involves moral turpitude.

Matter of Ahortalejo-Guzman, 25 I&N Dec. at 466.To reach this determination the IJ, relying on Matter of Silva-Treviño, 24 I&N Dec. 687, 696-704 (A.G. 2008), used statements contained in a police report and the respondent’s removal hearing testimony indicating that the victim of the respondent’s assault was his wife. Matter of Ahortalejo-Guzman, 25 I&N Dec. at 467.

This is in fact the third time the Attorney General/BIA has addressed the issue. The issue was originally addressed in a published Attorney General decision from 2008 titled the Matter of Silva-Trevino, 26 I&N Dec. 687 (AG 2008) [PDF version]. The 2008 decision was subsequently vacated in a second Attorney General precedent decision on the matter in the Matter of Silva-Trevino (“Silva-Trevino II”), 26 I&N Dec. 550 (AG 2015) [PDF version].

The U.S. Court of Appeals for the Fifth Circuit rejected the Attorney General’s decision in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), expanding the analytical framework by which immigration courts determine whether an immigrant has been convicted of a crime involving moral turpitude. § 101(a)(48)(A).

The U.S. Court of Appeals for the Ninth Circuit expressly rejected Matter of Silva-Treviño, 24 I&N Dec. 687 (A.G. 2008), in which Attorney General Mukasey revamped the method by which immigration courts determine whether a particular conviction involves moral turpitude. Olivas-Motta v. Holder, No. 10-72459, slip op. (9th Cir. May 17, 2013) (Fletcher, Hug, and Kleinfeld, JJ.).

Instead of actually analyzing a crime using the interpretive devices already familiar to us, the act seems to ask DHS to make a ballpark estimate: does the offense look like something that’s a CIMT? Even the Attorney General’s decision in Matter of Silva-Treviño, 24 I&N Dec. 687 (A.G. 2008), doesn’t do that. The bottom line is that the ACHIEVE Act’s criminal preclusions are obviously broad and poorly worded.

As Alina Das set out, noted above, the Supreme Court opened up some aggravated felony determinations to fact-specific determinations in Nijhawan v. Holder, 129 S. Ct. 2294, 2299 (2009). And, the Attorney General added a third level of fact-finding to some crime of moral turpitude determinations in Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008), allowing “any additional evidence or factfinding” the immigration court deems necessary. Moncrieffe presents a more indirect twist on this calculus: in prior cases, as Tom Goldstein put it, “the Government wanted to go beyond the record to go up.

Unlike most articles, the authors’ special perspective provides those of us who are intimately familiar with crImmigration law some interesting tidbits as well. When discussing the “groundbreaking” analytical framework for determining whether an offense is a crime involving moral turpitude, Matter of Silva-Treviño, 24 I&N Dec. 687 (A.G. 2008), for example, the judges explain that it’s currently unclear what evidence IJs may consider under Silva-Treviño’s third step—the step that I’ve previously described as the “anything goes” provision and that the authors describe more politely as allowing IJs to consider evidence outside the record of conviction. Marks and Slavin, A View Through the Looking Glass, 39 Fordham Urb. L.J. at 105.

Even the Attorney General in Matter of Silva-Treviño suggested that the record of conviction includes only the indictment, the judgment of conviction, jury instructions, a signed guilty plea, or the plea transcript. Matter of Silva-Treviño, 24 I&N Dec. 687, 699 (A.G. 2008). No document produced by the prosecutor is found in this list.