In 2008, then Attorney General Mulkasey issued an Michael Mulkasey issued a troubling decision called In the Matter of Silva-Trevino, Attorney General Michael Mukasey. This decision ignored nearly a century’s worth of case law and drastically expanded an immigration adjudicator’s decision to delve in the underlying facts of a non-citizen’s criminal conviction.
Under the U.S.l Immigration and Nationality Act (INA), certaincriminal convictions can lead to negative immigration consequences for noncitizens living in or trying to enter the United States. They may be deemed “inadmissible” if they have been convicted of certain money laundering or controlled substance offenses, crimes involving moral turpitude, or multiple non-political crimes; they may be deemed “deportable” if they have been convicted of certain firearms, domestic violence, or controlled substance offenses, or two or more crimes involving moral turpitude; and they may be ineligible for various discretionary forms of relief or naturalization if they have certain convictions in their history. Because many noncitizens are convicted under state (or foreign) law, rather than federal, law, immigration adjudicators must determine whether these convictions render the individual inadmissible or removable from the US. In approaching this issue, U.S. courts have traditionally used the “categorical approach.”
Under the categorical approach, the adjudicator focuses exlcusively on the elements required to convict someone under the state law. If the state statute only criminalizes the same sort of conduct contemplated by the federal immigration law, then there is a categorical “match,” and the criminal conviction will trigger immigration consequences. If, however, the state statute also punishes conduct that falls outside that envisioned under the federal immigration law, there is no “match,” and no immigration consequences may result. Notably, the categorical approach sets aside what acts the noncitizen actually committed; rather, the categorical approach mandates a comparative analysis of the statutes at issue, regardless of what the noncitizen actually did.
If no determination can be made under this categorical approach, most courts continue to a second step, termed the “modified categorical approach.” In this analysis, the court may look to documents in the noncitizen’s record of conviction, such as the charging documents, plea agreements, jury instructions, and verdict. But even under this modified approach, the court still may not consider the underlying facts of the case outside of what is included in the record of conviction.
Despite the fact that the categorical approach had been in use for almost 100 years, this principle was swept aside 2008. Former Attorney General Michael Mukasey issued an opinion in a case known as Matter of Silva-Trevino. There, the Board of Immigration Appeals (BIA) had used the categorical approach to vacate the Immigration Judge’s order of removal. The non-citizen had been convicted of indecent liberty of a minor child. The Board of Immigration Appeals (using the categorical approach) ruled that the offense was not a crime involving moral turpitude. Attorney General Mukasey granted rehearing and overruled the Board. He added a previously unheard of third step to the analysis: if the categorical approach and modified categorical approach did not lead to a conclusive determination, Mukasey concluded that the immigration adjudicator should “consider any additional evidence” beyond the record of conviction that s/he deemed “necessary or appropriate.” This ruling allowed the adjudicator to go beyond the four corners of the record.
His opinion was not well received. The United States court of Appeals for the Third, Fourth, Ninth, and Eleventh Circuit Courts of Appeals all rejected Silva-Trevino and upheld the categorical approach in cases concerning crimes involving moral turpitude. The Seventh and Eighth Circuit Courts of Appeals upheld the Silva-Trevino factual analysis approach, while other circuits did not address the issue directly, leading to a “circuit split.” Ironically, despite Mukasey’s ostensible attempt to “establish a uniform framework” for courts across the country to use, his decision in Silva-Trevino actually led to less uniformity, as Immigration Judges and the BIA thus had to apply different standards to different cases depending on which circuit the noncitizen’s case arose in.
In January 2014, the Fifth Circuit Court of Appeals rejected Mukasey’s fact-specific approach in Silva-Trevino’s own case. The final death knell of this ruling took place in April 2015. Outgoing Attorney Holder issued a formal order vacating General Mukasey’s Silva-Trevino opinion in full. He left it to the BIA to determine, in this and other future cases, “[w]hen, and to what extent, adjudicators may use a modified categorical approach and consider a record of conviction in determining whether” a noncitizen’s conviction qualifies as a crime involving moral turpitude and thus triggers immigration consequences.