5 Cir: Rejects Silva-Trevino

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). Id. at 6. The INA even includes a list of documents that “shall constitute proof of a conviction,” the court noted. Id. at 6 (citing INA § 240(c)(3)(B)). Nothing in the statute indicates that Congress intended for an IJ to rely on other evidence as proof of a conviction. Silva-Trevino, No. 11-60464, slip op. at 6.

Moreover, the Fifth Circuit explained that Congress is presumed to be aware of the traditional method for interpreting whether a conviction constitutes a removable offense, the categorical approach. Using the categorical approach, courts have consistently limited the type of evidence admissible for purposes of proving that a particular person was convicted of a removable offense. Despite that, Congress has never altered the conviction requirement to allow for consideration of other evidence even though it has routinely amended the CIMT provision. Id. at 9. The court, therefore, assumed that Congress expects it to continue using the categorical approach. Id. This is a major victory for immigrants in removal proceedings within the Fifth Circuit. Meanwhile, the circuit split that Mukasey’s opinion created continues to grow. Only time will tell how that ends.