3d Circuit: Rejects CIMT analysis announced in Matter of Silva-Treviño and holds that PA simple assault conviction is not CIMT

In an otherwise ordinary case the U.S. Court of Appeals for the Third Circuit this week announced its rejection of the Attorney General’s analysis of crimes involving moral turpitude announced in Matter of Silva-Treviño, 24 I&N Dec. 687 (A.G. 2008). Jean-Louis v. Attorney General, No. 07-3311, slip op. (3d Cir. Oct. 6, 2009) (Rendell, Roth, and Hayden). Judge Rendell issued the panel’s unanimous decision.

This case concerned a conviction under Pennsylvania’s simple assault statute, 18 Pa. Cons. Stat. § 2701(b)(2), for purposes of Cancellation of Removal. Jean-Louis, No. 07-3311, slip op. at 3.

The Third Circuit first reiterated that it has long applied a categorical approach to determine whether an offense constitutes a CIMT. Jean-Louis, No. 07-3311, slip op. at 7-8 (quoting Knapik v. Ashcroft, 384 F.3d 84, 89 (3d Cir. 2004)). The Court then noted the enormous exception that exists to the CIMT analysis—namely, the exception frequently referred to as the modified categorical approach. “Where a statute of conviction contains disjunctive elements, some of which are sufficient for conviction of the federal offense and others of which are not, we have departed from a strict categorical approach.” Jean-Louis, No. 07-3311, slip op. at 8. According to the Third Circuit, the modified categorical approach allows for “a limited factual inquiry, examining the record of conviction for the narrow purpose of determining the specific subpart under which the defendant was convicted.” Jean-Louis, No. 07-3311, slip op. at 8.

Applying the modified categorical approach, the Third Circuit concluded that § 2701(b)(2) has no mental state requirement and that the Attorney General’s decision in Matter of Silva-Treviño emphasizes “that a defendant’s knowledge regarding the age of his victim may properly bear on the depravity of his conduct.” Jean-Louis, No. 07-3311, slip op. at 17. As such, the Third Circuit held that simple assault in Pennsylvania is not a CIMT. Jean-Louis, No. 07-3311, slip op. at 17.

The most important aspect of this decision, however, is the Third Circuit’s rejection of Matter of Silva-Treviño. The Third Circuit “conclude[d] that deference is not owed to Silva-Trevino’s novel approach.” Jean-Louis, No. 07-3311, slip op. at 18. Thus, the Third Circuit refused to apply Matter of Silva-Treviño and instead applied the modified categorical approach only. Jean-Louis, No. 07-3311, slip op. at 18.

The Third Circuit identified several reasons for its rejection of Matter of Silva-Treviño. First, the Third Circuit determined that “Silva-Treviño alters the focus of the categorical analysis” as required by Supreme Court and Third Circuit precedent. Jean-Louis, No. 07-3311, slip op. at 20. As the Third Circuit explained, “Under our precedents, the possibility of conviction for non-turpitudinous conduct, however remote, is sufficient to avoid removal; proof of actual application of the statute of conviction to the conduct asserted is unnecessary.” Jean-Louis, No. 07-3311, slip op. at 20. In contrast, Matter of Silva-Treviño requires a “realistic probability” test. Jean-Louis, No. 07-3311, slip op. at 21 (discussing Matter of Silva-Treviño, 24 I&N Dec. Dec. at 697). The Third Circuit described the realistic probability test as “wrong-headed.” Jean-Louis, No. 07-3311, slip op. at 45. After acknowledging that the realistic probability test originated in Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007), the Third Circuit explained that it “seriously doubt[s] that the logic of the Supreme Court in Duenas-Alvarez is transferable to the CIMT context.” Jean-Louis, No. 07-3311, slip op. at 46.

Second, the Third Circuit concluded that “Silva-Treviño renders the strict ‘categorical’ approach not ‘categorical.’” Jean-Louis, No. 07-3311, slip op. at 22. Under the modified categorical approach, the Third Circuit reminded, an IJ may examine the record of conviction only “to ascertain the particular variation of the statute under which the defendant was convicted.” Jean-Louis, No. 07-3311, slip op. at 22. Matter of Silva-Treviño, the Third Circuit held, abandons this limited analysis in favor of a wide examination of the facts underlying the conviction. Jean-Louis, No. 07-3311, slip op. at 23. “Silva-Treviño sets no limitations on the kinds of evidence adjudicators may consider.” Jean-Louis, No. 07-3311, slip op. at 23. This is “an impermissible reading of the statute,” the Third Circuit concluded, referring to the INA. Jean-Louis, No. 07-3311, slip op. at 25. “It could not be clearer from the text of the statute –which defines ‘conviction’ as a ‘formal judgment of guilt,’ and which explicitly limits the inquiry to the record of conviction or comparable judicial record evidence—that the CIMT determination focuses on the crime of which the alien was convicted—not the specific acts that the alien may have committed.” Jean-Louis, No. 07-3311, slip op. at 27-30 (internal citations omitted). “Because the INA requires the conviction of a crime—not the commission of an act—involving moral turpitude, the central inquiry is whether moral depravity inheres in the crime or its elements—not the alien’s underlying conduct.” Jean-Louis, No. 07-3311, slip op. at 37.

The Third Circuit explained that its holding “is grounded in history.” Jean-Louis, No. 07-3311, slip op. at 33. As the Court explained, “the INA premises removability not on what an alien has done, or may have done, or is likely to do in the future (tempting as it may be to consider those factors), but on what he or she has been formally convicted of in a court of law . . . .” Jean-Louis, No. 07-3311, slip op. at 33. Rather than accept the Attorney General’s conclusion in Matter of Silva-Treviño that the phrase “involving moral turpitude” modifies the term “crime,” thus expanding the CIMT analysis to include crimes that are committed in a manner that involves moral turpitude, the Third Circuit noted that the phrase “crime involving moral turpitude” is a term of art that precedes the INA. Jean-Louis, No. 07-3311, slip op. at 36. As such, the phrase “crime involving moral turpitude” cannot be divided into its component parts. Jean-Louis, No. 07-3311, slip op. at 36-37.

Accordingly, the Third Circuit rejected Matter of Silva-Treviño and determined that Pennsylvania’s simple assault offense in not a CIMT.