7th Circuit: BIA must use Silva-Treviño analysis; can’t rely on categorical approach alone

By University of Denver Sturm College of Law

Dec 9, 2010

The Seventh Circuit Court of Appeals recently held that it was improper for the BIA to rely on a precedential decision in which it used a categorical analysis to determine whether a crime involving moral turpitude. Mata-Guerrero v. Holder, No. 10-1664, slip op. (7th Cir. Nov. 24, 2010) (Manion, Tinder, and Hamilton). Instead, the Seventh Circuit panel held, the BIA must use the three-step analysis mandated by Matter of Silva-Treviño, 24 I&N Dec. 687 (A.G. 2008), to determine whether a criminal offense involves moral turpitude. Mata-Guerrero v. Holder, No. 10-1664, slip op. at 8-9. Judge Hamilton wrote the panel’s opinion.

Mata-Guerrero sought relief pursuant to former § 212(c), but was found ineligible for § 212(c) relief because his two convictions were held to constitute CIMTs. On appeal Mata-Guerrero argues that failure to register as a sex offender under Wisconsin law does not constitute a CIMT.

The BIA relied on a precedential decision issued before Silva-Treviño under which it held that failure to register as a sex offender under California law was a CIMT. Mata-Guerrero v. Holder, No. 10-1664, slip op. at 5 (discussing Matter of Tobar-Lobo, 24 I&N Dec. 143 (2007)). “Relying on that case, the Board concluded that Mata-Guerrero’s conviction for failure to register was a crime of moral turpitude and therefore that Mata-Guerrero was ineligible for a section 212(c) waiver, even though Wisconsin Statute § 301.45(2)(a) contains no element of intent or even knowledge.” Mata-Guerrero v. Holder, No. 10-1664, slip op. at 5

The Tobar-Lobo decision was decided using the categorical approach to statutory interpretation. Mata-Guerrero v. Holder, No. 10-1664, slip op. at 2. Because, Silva-Treviño requires a different approach when considering CIMTs, the Seventh Circuit held that it was improper for the BIA to rely on Tobar-Lobo without conducting an independent analysis using the Silva-Treviño framework. Mata-Guerrero v. Holder, No. 10-1664, slip op at 2.

The Seventh Circuit provided a helpful explanation of the three-step analysis required by Silva-Treviño:

In Silva-Trevino, the Attorney General established a three-step inquiry to be used to decide whether particular criminal offenses amount to crimes of moral turpitude. First, the immigration judge should focus on the statute’s actual scope and application and ask whether, at the time of the alien’s removal proceeding, any actual (not hypothetical) case existed in which the statute was applied to conduct that did not involve moral turpitude, includingthe alien’s own conviction. See 24 I. & N. Dec. at 697, 704, citing Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). If that evaluation of a “realistic probability” does not resolve the question, the judge should proceed to a “modified categorical” approach, examining the record of conviction, including documents such as the indictment, the judgment of conviction, jury instructions, a signed guilty plea, or a guilty plea transcript. See id. at 699, 704. Then, where those records of conviction also fail to shed light on the question, the Attorney General instructs that the immigration judge should consider any evidence beyond those records “if doing so is necessary and appropriate to ensure proper application of the Act’s moral turpitude provisions.” Id. at 699.

Mata-Guerrero v. Holder, No. 10-1664, slip op. at 9.

Importantly, the Seventh Circuit suggested that Wisconsin’s failure to register as a sex offender offense would not constitute a CIMT under the first two steps of Silva-Treviño: “Nothing in the record before this court suggests that the requisite intent was present in Mata-Guerrero’s crime. Wisconsin Statute § 301.45(2)(a) does not have an element of intent, and Mata-Guerrero’s record of conviction under that provision of Wisconsin law does not disclose that he had any criminal intent when he failed to comply with its requirements.” Mata-Guerrero v. Holder, No. 10-1664, slip op. at 10-11.

The Seventh Circuit remanded the case to determine whether Mata-Guerrero’s offense constituted a CIMT under the third part of the Silva-Treviño analysis—what I refer to as the “anything goes” analysis. Mata-Guerrero v. Holder, No. 10-1664, slip op. at 11. The implication is that, in the Seventh Circuit’s view, Wisconsin’s failure to register as a sex offender offense would never constitute a CIMT except possibly under the third part of the Silva-Treviño analysis.