By Rose Hernandez*

On April 10, 2015, Attorney General Eric Holder vacated the November 2008 decision In re: Matter of Cristoval Silva-Trevino.  The decision had been certified by then-Attorney General Michael Mukasey.  Silva-Trevino was controversial from the start because it seemed to give the immigration enforcement apparatus more than its fair share of chances to try to construe a criminal conviction as one that would result in deportability or inadmissibility. 

Background – What is a Crime involving Moral Turpitude?

Silva-Trevino is about how to decide whether a criminal conviction is for a “crime involving moral turpitude,” or a CIMT.  A CIMT has been defined as a depraved or immoral act, or a violation of the basic duties owed to fellow man, or in the Silva-Trevino decision itself as a “reprehensible act” with at least a reckless intent.  Using these morals-based definitions, it can be a challenge for Immigration Judges to decide whether conduct forbidden by specific state criminal laws constitute CIMTs.  The 2008 AG decision dictated how immigration judges and the Board of Immigration Appeals (BIA) should decide cases involving sections 212(a)(2)(A)(i) and 237(a)(2)(A)(i) of the Immigration and Nationality Act.[i] 212(a)(2) defines criminal inadmissibility, while 237(a)(2) defines criminal deportability.  Under 212(a)(2)(A)(i), the exact law at issue in the Silva-Trevino case, a foreign national is inadmissible if she has been convicted or admits to the essential elements of a CIMT.  She cannot be admitted, or come in to the U.S. as a nonimmigrant visa holder or immigrant.

Traditional Approaches to CIMT Analysis

There are two basic approaches to deciding whether a specific conviction is a CIMT.  The categorical approach basically says if a person can possibly be convicted of this particular crime without having been so depraved as to commit a CIMT, then the statute is so broad that no person convicted under this exact statute can be found to have committed a CIMT.

The modified categorical approach[ii] has been applied by courts when interpreting divisible statutes, or those statutes that criminalize several offenses, some of which might be CIMTs and some of which might not.  If the state criminal statute is divisible, under the modified categorical approach, an immigration judge may go beyond the confines of the statute, and look also to the “record of conviction” to see if the person’s conduct should be declared a CIMT.  The record of conviction includes the charging document, plea agreement and disposition, and perhaps the plea transcript. Looking at the record of conviction is supposed to help Immigration Judges determine which part of a divisible statute applies to a person’s conviction.  And once the Immigration Judge decides which section applies, the inquiry goes back to a categorical analysis of whether the minimum criminal conduct necessary to sustain a conviction involves moral turpitude.  

The Silva-Trevino Test

Silva-Trevino did something very different.  The decision held a foreign national may be found to have been convicted of a CIMT unless there is a "realistic probability" that the criminal statute under which she was convicted would be applied to conduct not involving moral turpitude.[iii]  Under Silva-Trevino, the immigration judge was able to go beyond the record of conviction and hold a hearing on the facts about the defendant’s conduct, to see if the defendant committed a CIMT.  The judge was permitted under Silva-Trevino to take testimony from the defendant, review police reports, and even consider facts not required to prove an element of the offense.[iv]

AG Holder’s Decision

In his April 2015 decision, AG Holder discusses the three steps of a Silva-Trevino inquiry.  Step 1, a categorical inquiry; Step 2, a modified categorical inquiry in which the Immigration Judge could look for facts indicating a CIMT in the record of conviction; and Step 3, “any additional evidence.”  AG Holder notes the Silva-Trevino third step was rejected by the Fifth Circuit Court of Appeals as “contrary to the unambiguous language of the statute.”[v]  AG Holder notes the circuit split that resulted, with some circuits siding with the 5^th in its rejection of Silva-Trevino and some circuits granting deference to AG Mukasey’s opinion.  AG Holder also reasons that recent U.S. Supreme Court decisions interpreting the immigration criminal category “aggravated felony” require categorical analysis of the immigration consequences of criminal convictions and reject fact-specific inquiries.      

What does Holder ask the Board of Immigration Appeals to do now?

In his decision, AG Holder directs the BIA to come up with a new framework for CIMT analysis that is consistent with U.S. Supreme Court case law on the categorical approach and under what circumstances a modified approach is permitted.  Immigration Judges should now not undertake a Step 3 analysis.

*Rose Hernandez is a partner at the firm of Saev Hernandez Immigration Practice, PLLC, where she practices all types of immigration law. Rose is a 2007 graduate of Vanderbilt University School of Law, where she was an associate editor of the Vanderbilt Journal of Entertainment Law and Practice. She may be reached at rose@shipvisa.com or 615-647-8628.

As my term as Chair of TBA’s Immigration Law Section comes to an end, I would like to express my gratitude for all of the hard work of Executive Council members: Sean Lewis, Terry Olsen, Kate Tucker, Shelley Starzyk, and Romona Jackson.

I would also like to thank Rose Hernandez for her timely and insightful article in this issue. If you would like to write an article, please e-mail me at bbuchanan@visalaw.com or call me at 615-345-0266.

Bruce Buchanan

Register here

The TBA Disbility Law Section will meet during TBA Convention as follows:??

Date/Time:
Friday, June 19, 2015
11:00 a.m. - 12:00 p.m. Central/12:00 p.m. - 1:00 p.m. Eastern

Location:
Boardroom - Mezzanine Level
The Peabody Hotel
149 Union Avenue
Memphis, TN 38103
(901) 529-4000
The Peabody Hotel

A conference call will be available for those unable to join us in person. The following are the instructions for joining the call:

You will dial in on the following number:

1-855-795-9620

You will then be prompted to enter the following conference ID number, followed by the pound (#) sign:

4424167? #

There is still time if you would like to register for TBA Convention. You may register by calling TBA at 1-800-899-6993 or local at (615) 383-7421 or register online at:
2015 TBA Annual Convention

You do not have to be registered for Convention to attend this Section meeting.

We hope to see you there!

Thank you!

Christy Gibson
TBA Disability Law Section Coordinator

The TBA has been contacted about a research assignment by a University of Tennessee law student intern for Senator Brian Kelsey, Chair of the Senate Judiciary Committee. They are looking for any information on the award of costs under TCA §20-12-119. New provisions were added to that section in 2012 which require the award of a broad array of costs following the grant of a TRCP 12 motion for failure to state a claim. The statute contains a strict set of conditions and limitations and an extensive set of exceptions. The TBA was instrumental in the enactment of the conditions, limitations and exceptions.

In order to address the request from Senator Kelsey's office, we would ask that you submit any instances that costs have been requested, granted or denied under the provision.  Please send all information to Christy Gibson at the TBA no later than June 3, 2015. 

Thank you in advance for your assistance!

Christy Gibson

TBA Litigation Section Coordinator

The TBA has been contacted about a research assignment by a University of Tennessee law student intern for Senator Brian Kelsey, Chair of the Senate Judiciary Committee. They are looking for any information on the award of costs under TCA §20-12-119. New provisions were added to that section in 2012 which require the award of a broad array of costs following the grant of a TRCP 12 motion for failure to state a claim. The statute contains a strict set of conditions and limitations and an extensive set of exceptions. The TBA was instrumental in the enactment of the conditions, limitations and exceptions.

In order to address the request from Senator Kelsey's office, we would ask that you submit any instances that costs have been requested, granted or denied under the provision.  Please send all information to Christy Gibson at the TBA no later than June 3, 2015. 

Thank you in advance for your assistance!

Christy Gibson

TBA Tort & Insurance Section Coordinator

The Tennessee Youth Court Program is a youth-driven juvenile delinquency prevention and intervention program that is spreading through Tennessee.  The program empowers teenagers to give peers a second chance, a new and positive direction after getting in trouble for the first time with the juvenile court system. 

Now we are facing our biggest challenge.  The program is experiencing phenomenal success and growth while facing a funding crisis.  Federal funds that have sustained the program throughout its existence have been cut.  We need your help to continue and to grow.

The Big Payback is a community-wide, online giving day hosted by The Community Foundation of Middle Tennessee on May 5, 2015. This charitable giving day will help our organization raise much-needed unrestricted dollars.

For 24 hours, beginning at 12 a.m. on Tuesday, May 5, donors can make gifts to the Tennessee Youth Court Program through our TBA site or through the Big Payback site.   

We will be eligible for incentives, bonuses and additional prizes throughout the day so your gift would be greatly appreciated.

For more information about the Tennessee Youth Court Program, please visit https://www.tba.org/info/tennessee-youth-court-program

For information about the Big Payback, please visit www.TheBigPayback.org

The Tennessee Youth Court Program is a youth-driven juvenile delinquency prevention and intervention program that is spreading through Tennessee.  The program empowers teenagers to give peers a second chance, a new and positive direction after getting in trouble for the first time with the juvenile court system. 

Now we are facing our biggest challenge.  The program is experiencing phenomenal success and growth while facing a funding crisis.  Federal funds that have sustained the program throughout its existence have been cut.  We need your help to continue and to grow. 

 The Big Payback is a community-wide, online giving day hosted by The Community Foundation of Middle Tennessee on May 5, 2015. This charitable giving day will help our organization raise much-needed unrestricted dollars.

For 24 hours, beginning at 12 a.m. on Tuesday, May 5, donors can make gifts to the Tennessee Youth Court Program through our TBA site or through the Big Payback site.   

We will be eligible for incentives, bonuses and additional prizes throughout the day so your gift would be greatly appreciated.

For more information about the Tennessee Youth Court Program, please visit https://www.tba.org/info/tennessee-youth-court-program

For information about the Big Payback, please visit www.TheBigPayback.org.

The 109th General Assembly has been very busy this legislative session.  Click here to find out what the General Assembly has been doing as it pertains to Family Law Legislation. 

If you have not signed up for this year's annual Entertainment & Sports Forum, you need to do so TODAY!  This year's program was designed around your requests and ideas for topics. With insights for practitioners of all levels, the program will include the following:

• an inside perspective on negotiating publishing deals;
• the life cycle of a film project from development to financing to distribution;
• bringing foucs to the Blurred Lines Verdict; and,
• the ethics and practicalities of practice from various perspectives.

To register or learn more about the program, click here!