Crimes Involving Moral Turpitude After Silva-Trevino II: The Categorical Approach Is Back

On October 12, 2016 the Board of Immigration Appeals issued Matter of Silva-Trevino, 26 I&N Dec. 826 (BIA 2016) — commonly called Silva-Trevino II (or, by some practitioners, Silva-Trevino III, counting the original 2008 Attorney General opinion and Attorney General Holder’s 2015 vacatur). The decision returned the question of whether a state conviction is a crime involving moral turpitude (CIMT) under INA §212(a)(2)(A)(i)(I) (8 U.S.C. §1182(a)(2)(A)(i)(I)) and INA §237(a)(2)(A)(i) (8 U.S.C. §1227(a)(2)(A)(i)) to the categorical and modified categorical approaches the Supreme Court has used for decades — and ended the practitioner-unfriendly experiment of asking immigration judges to look behind a conviction record at the underlying conduct.

What changed

For seven years between 2008 and 2015, the operative authority on CIMT analysis was Attorney General Mukasey’s Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), which created a three-step framework that ended with an immigration judge looking at “any additional evidence the adjudicator determines is necessary or appropriate” to decide whether the noncitizen’s actual conduct involved moral turpitude. That third step — fact-finding outside the categorical record — split the circuits. The Third, Fourth, Eighth, and Eleventh Circuits accepted it; the First, Third (in part), Fifth, Ninth, and Eleventh (later) rejected it as inconsistent with the categorical approach the Supreme Court reaffirmed in Moncrieffe v. Holder, 569 U.S. 184 (2013).

In April 2015, Attorney General Holder vacated the 2008 decision and remanded to the BIA. Silva-Trevino II is the BIA’s response. The new framework, as the Board explained at 26 I&N Dec. 831–34, is straightforward:

1. Categorical approach first. Compare the elements of the statute of conviction to the generic definition of a CIMT. If the minimum conduct prosecutable under the statute is a CIMT, the conviction is categorically a CIMT — and inadmissibility or deportability follows automatically.

2. Modified categorical approach if the statute is divisible. When a single statute lists multiple alternative crimes, only some of which are CIMTs, the immigration judge may look at a limited universe of Shepard-approved documents — the charging document, plea agreement, plea colloquy, jury instructions, and comparable judicial records — to decide which alternative the defendant was convicted under.

3. No looking behind the record. The 2008 step-three “realistic probability” inquiry — where an IJ would receive testimony or police reports about what really happened — is gone. If the statute is overbroad and indivisible, the conviction is not a CIMT for immigration purposes, full stop.

The Board reaffirmed the long-standing definition of CIMT as conduct that is “inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general” — citing Matter of Franklin, 20 I&N Dec. 867 (BIA 1994). The change was procedural, not substantive: what counts as a CIMT did not move, but how the adjudicator decides whether a particular statute fits did.

Why it matters

The categorical approach is good for noncitizens — it limits the adjudicator to elements rather than conduct, and overbroad statutes default to not a CIMT. Silva-Trevino II therefore reopens defenses that were foreclosed under the 2008 framework.

Three real-world consequences:

• Inadmissibility at adjustment. A client with a single misdemeanor on a divisible statute — say, a state theft statute that covers both permanent and temporary takings — is no longer at risk of an immigration judge taking testimony about her intent. If the record of conviction does not narrow her plea to the permanent-taking alternative, the conviction is not a CIMT for INA §212(a)(2)(A) inadmissibility purposes, and her I-485 is back on the table.

• Deportability for LPRs. A lawful permanent resident charged under INA §237(a)(2)(A)(i) with a single post-admission CIMT can challenge the underlying categorical fit. If the statute is overbroad, the NTA is defeated at the categorical step — no need to litigate “exceptional and extremely unusual hardship” downstream.

• Predictability for plea negotiations. Criminal defense counsel can now read a plea sheet and predict the immigration consequence with statute-and-record precision. That was impossible under the 2008 rule, which made every plea a hostage to whatever facts a later IJ might choose to credit.

The decision also reset the BIA’s relationship with the circuits. Courts that had been resisting the 2008 framework — most prominently the Ninth Circuit in Olivas-Motta v. Holder, 716 F.3d 1199 (9th Cir. 2013) — now align with the BIA’s own analysis, and the Chevron tension that had infected CIMT cases for half a decade went away.

Way forward

A practical workflow under Silva-Trevino II:

1. Pull the statute and the record of conviction together. The statute of conviction defines the universe of conduct; the record narrows it. Order certified copies of the charging document, plea, judgment, and sentence from the convicting court — these are your Shepard documents.

2. Compare elements, not facts. Identify the minimum conduct that would sustain a conviction under the statute. If a hypothetical defendant convicted of that minimum conduct would not have committed a CIMT, the statute is overbroad — and the analysis stops there unless the statute is divisible.

3. Test divisibility under Mathis v. United States, 579 U.S. 500 (2016). A statute is divisible only if its alternative terms are elements (each requiring jury unanimity) rather than means. State pattern jury instructions and state-court decisions are the controlling sources.

4. Cross-check the USCIS Policy Manual, Volume 12, Part F, Chapter 5 on good moral character CIMT analysis if your client’s case is on the naturalization side rather than removal — USCIS adjudicators apply the same categorical framework for the N-400 GMC look-back.

5. For petty-offense or single-CIMT cases, also check INA §212(a)(2)(A)(ii). The petty-offense and single-CIMT exceptions at 8 U.S.C. §1182(a)(2)(A)(ii) survive the Silva-Trevino II shift and can save a borderline categorical fit.

6. Preserve the record. If the immigration judge nonetheless tries to take testimony about underlying conduct, object on the record and cite Silva-Trevino II at 26 I&N Dec. 833. The BIA and the courts will sustain the objection.

Disclaimer

Fola Form is a software company, not a law firm. Nothing in this article is legal advice and reading it does not create an attorney-client relationship. CIMT determinations are statute-specific and jurisdiction-specific; the categorical analysis turns on the exact text of the state conviction statute and on the divisibility doctrine the controlling circuit applies. Verify against the primary source — the Board of Immigration Appeals precedent decisions index (for Silva-Trevino, 26 I&N Dec. 826) — along with the INA §212(a)(2)(A) and INA §237(a)(2)(A)(i) statutory texts, before relying on this analysis in any individual case. Consult a licensed immigration attorney about CIMT exposure on a specific record of conviction.