9 Cir: Rejects Silva-Treviño; deepens circuit split

By University of Denver Sturm College of Law

Jul 11, 2013

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.). Judge Fletcher wrote the panel’s opinion; Judge Kleinfeld concurred.

This case involved an LPR who arrived in the United States at the age of 10 days. Eventually he was convicted of marijuana possession in 2003 and endangerment in 2007, both in Arizona. DHS charged him as removable for having been convicted of two or more CIMTs under INA § 237(a)(2)(A)(ii). Olivas-Motta v. Holder, No. 10-72459, slip op. at 4. He conceded that the marijuana possession offense was a CIMT, but argued that endangerment was not. The IJ and BIA disagreed with him. Both relied on police reports that described conduct Olivas-Motta allegedly engaged in claiming that Silva-Treviño authorized consideration of these documents. Olivas-Motta v. Holder, No. 10-72459, slip op. at 5.

The Ninth Circuit disagreed that the IJ or BIA could examine documents outside the record of conviction as Silva-Treviño allows. Despite the fact that what constitutes a CIMT is “famously ambiguous,” the court explained, nothing “permits an IJ to use a different procedure than it uses for other crimes in determining whether an alien has been convicted of such a crime.” Olivas-Motta v. Holder, No. 10-72459, slip op. at 11-12. In other words, just because it’s often unclear whether an offense is a “crime involving moral turpitude” doesn’t mean it’s any more difficult to figure out whether a person was “convicted” of a CIMT versus “convicted” of an aggravated felony. This matters because INA § 237(a)(2)(A)(ii) requires a finding that a person was “convicted” of multiple CIMTs to be deportable. Olivas-Motta v. Holder, No. 10-72459, slip op. at 13-14. As such, the Attorney General could not reinterpret the method by which immigration courts determine whether a crime involves moral turpitude; they have to use the same categorical approach and modified categorical approach that the Supreme Court announced in Taylor v. United States, 495 U.S. 575 (1990), and Shepard v. United States, 544 U.S. 13 (2005).

Furthermore, the court concluded that the “involving moral turpitude” language doesn’t just “describe a circumstance of the crime,” as the government argued. Rather, “involving moral turpitude” must be an element of an offense in order for it to constitute a CIMT. Olivas-Motta v. Holder, No. 10-72459, slip op. at 19. To drive home this point, the court explained the logical result of interpreting “involving moral turpitude” as being independent from the term “crime.” In the court’s words, “If one eliminates the phrase ‘involving moral turpitude’ from the phrase ‘crime involving moral turpitude,’ there is no separately defined crime. There is only the single word ‘crime,’ covering the entire universe of crime. The words ‘involving moral turpitude’ are thus integral to the description of the generic crime of CIMT and constitute an element of that generic crime.” Olivas-Motta v. Holder, No. 10-72459, slip op. at 21.

The end result is that the court concluded that the method immigration courts are to use to determine what a crime involves moral turpitude is not ambiguous. The statutory text of INA § 237 clearly requires a focus on the conviction not any underlying conduct that the noncitizen may have committed but for which she wasn’t convicted. Under the administrative deference framework announced in Chevron U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984), the Attorney General had no choice but to do as Congress mandated. Olivas-Motta v. Holder, No. 10-72459, slip op. at 6, 23.

Consequently, the court joined the Third (Jean-Louis v. Attorney General, Fourth (Prudencio v. Holder), and Eleventh Circuits (Sanchez-Fajardo v. Attorney General) in rejecting Silva-Treviño. This furthers the circuit split that already existed given that the Seventh (Mata-Guerrero v. Holder) and Eighth Circuits have adopted conflicting positions. Olivas-Motta v. Holder, No. 10-72459, slip op. at 23.

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