Silva-Trevino is dead

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).

Building off multiple Supreme Court decisions and even longer federal court and BIA practices, immigration judges gauge whether a particular crime subjects a migrant to removability using the categorical approach of statutory analysis. The categorical approach limits IJs to considering the text of the statute of conviction. In some instances (namely when a statute of conviction contains some elements that would result in removability and others that would not), IJs may consider the record of conviction under an analytical framework referred to as the “modified categorical approach.”

In Matter of Silva-Trevino, Mukasey took a significant departure from this well-grounded approach. In a section of my forthcoming book Crimmigration Law that suddenly (and, to me, unexpectedly) now needs to be updated, I explain Mukasey’s decision like this:

In Matter of Silva-Trevino, Attorney General Michael Mukasey, having directed the BIA to refer the case to him,[1] announced a new method of determining whether a conviction constitutes a crime involving moral turpitude. In addition to using the categorical and modified categorical approach, the attorney general instructed immigration judges to “consider any additional evidence the adjudicator determines is necessary or appropriate to resolve accurately the moral turpitude question.”[2] This additional step in the analysis represents a significant deviation from the categorical approach’s focus on the statute of conviction and the modified categorical approach’s recognition that a small set of documents created by or at the direction of the criminal court may shed light on the particular elements of a crime that the migrant was convicted of.

Five circuits have refused to adopt Mukasey’s approach (including the Fifth Circuit in Silva-Trevino’s own appeal), while two have followed it. [For my past discussions of Silva-Trevino, see here.] That circuit split, Attorney General Holder recognized, “forces immigration judges and the Board to apply different standards in different jurisdictions,” a reality that subverts Mukasey’s claim that his approach would bring uniformity to the CIMT analysis nationwide. Matter of Silva-Trevino, A013-014-303, at 3.

Moreover, Holder noted that multiple Supreme Court decisions in recent years have reaffirmed the centrality of the categorical approach. “These decisions,” Holder wrote, “cast doubt on the continued validity of the third step of the framework set out by Attorney General Mukasey’s opinion.” Id.

As a result, Holder “conclude[]ed that it is appropriate to vacate the November 7, 2008, opinion [in Matter of Silva-Trevino] in its entirety.” Id. at 4. In a footnote, Holder’s order added that, for now at least, this does not invalidate BIA decisions that themselves built off the Silva-Trevino framework. Id. at 4 n.3.

Big news indeed. This is the power that administrative officials have over immigration law. In a simple five-page order, Holder took an important step promoting migrants’ ability to try to remain in the United States despite a criminal conviction. In the process, he eliminated an analytical framework that had posed a major headache for immigration practitioners.

[1]See 8 C.F.R. § 1003.1(h)(1)(i).

[2] Matter of Silva-Trevino, 24 I&N Dec. 687, 704 (A.G. 2008).