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13 Bender’s Immigration Bulletin
December 15, 2008
A USER’S GUIDE TO MATTER OF SILVA-TREVINO
BY ANN ATALLA
Crimes involving moral turpitude have been a
problematic area of immigration law for decades,
largely due to their vague and often conflicting
manifestations in statutory and case law. Much
confusion stems from broad definitions crafted over the
years, such as “conduct which 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” and ambiguous terms such as
“malum in se” and “evil intent.”1 This language has
spawned questions about the mens rea required for
crimes involving moral turpitude. When is specific
intent necessary? Is mere willingness to commit a
crime or recklessness sufficient to rise to the level of
moral turpitude?
Other problems spring from a circuit split in the
treatment of moral turpitude analysis. For example, the
Second and Fifth Circuits provide an analysis of
statutory
language,
followed
under
narrow
circumstances by an examination of the record of
conviction.2 In contrast, the Seventh Circuit permits
discretionary consideration of all relevant evidence to
“characterize or classify an offense.”3 This divergence
results in inconsistent applications of the law in
immigration courts nationwide. Courts might find that
an assault offense would not constitute a crime
involving moral turpitude in the Fifth Circuit, where
the judge is confined to the statutory language and the
record of conviction, but would involve moral
turpitude in the Seventh Circuit, where witness
testimony outside the conviction record might be
considered.
In recognition of these problems, the Attorney General
has taken on the ambitious task of clarifying the
analysis and definition of crimes involving moral
turpitude. To mend the “patchwork of different
approaches across the nation,” his opinion seeks to
“establish a uniform framework for ensuring that the
Act’s moral turpitude provisions are fairly and
accurately applied.”4 This article aims to make sense of
these findings.
A. The Analytical Framework in Silva-Trevino
Silva-Trevino has made several substantial changes in
the methodology for analyzing crimes involving moral
turpitude. Specifically, Silva-Trevino makes changes to
the “categorical” and “modified categorical” inquiries
practitioners make when examining statutory text and
conviction records. It also permits immigration judges
to consider evidence outside the record of conviction.
Some of these changes may require immigration
practitioners to employ new strategies when analyzing
crimes involving moral turpitude.
1. Step One: Categorical Inquiry
To determine whether an offense involves moral
turpitude under Silva-Trevino, the analysis begins with
the familiar “categorical approach” and a close
examination of the statutory text.5 The practitioner
must “look to the statute of conviction rather than to
the specific facts of the alien’s crime” to determine
whether the inherent nature of the crime involves moral
turpitude.6
For example, the Board of Immigration Appeals has
found that an offense involving an intentional infliction
of serious bodily harm constitutes a crime involving
moral turpitude.7 Therefore, if a statute of conviction
for assault and battery requires only that the perpetrator
“intentionally inflict serious bodily injury,” the statute
would categorically involve moral turpitude because
the conduct covered by this statute falls within the
Board’s definition of moral turpitude. Similarly, the
Attorney General notes that a statute criminalizing the
knowing commission of a sexual offense with a minor
1
Matter of Khourn, 21 I. & N. Dec. 1041, 1046 (BIA 1997);
Matter of Franklin, 20 I. & N. Dec. 867, 868 (BIA 1994);
Matter of Flores, 17 I. & N. Dec. 225, 227 (BIA 1980).
2
See, e.g., Wala v. Mukasey, 511 F.3d 102, 109 (2d Cir.
2007); Amouzadeh v. Winfrey, 467 F.3d 451, 455 (5th Cir.
2006).
3
Ali v. Mukasey, 521 F.3d 737, 742-43 (7th Cir. 2008).
4
Matter of Silva-Trevino, 24 I. & N. Dec. 687 (Att’y Gen.
2008).
5
Id. at 692.
6
Id. at 696; Matter of Short, 20 I. & N. Dec. 136 (BIA 1989).
7
See, e.g., Matter of Sejas, 24 I. & N. Dec. 236 (BIA 2007).
13 Bender’s Immigration Bulletin
would inherently involve moral turpitude because it is
a “base” and “vile” act that destroys “the trust and
innocence of society’s most vulnerable members.”8 No
further inquiry would be necessary for either of these
cases.
A more complex, and common, scenario arises when a
statute of conviction may apply to conduct that does
and does not involve moral turpitude. For example, an
assault statute might involve reprehensible “base” and
“vile” conduct, but not explicitly require knowledge,
intent, or any other mens rea necessary to comprise a
crime involving moral turpitude.9 Before Silva-Trevino,
circuit courts varied in their treatment of this
situation.10 The Third and Fifth Circuits examined
whether the “most minimal conduct that could
hypothetically permit a conviction” under such a
statute involved moral turpitude.11 The First and Eighth
Circuits looked at whether the crime “generally” or
“commonly” involved moral turpitude.12 The Attorney
General rejects both of these approaches.13
Instead, Silva-Trevino adds a new requirement to the
“categorical approach.” The practitioner should now
demonstrate that there is a “realistic probability” that
the criminal statute under which the alien was
convicted would be applied to “reach conduct that does
not involve moral turpitude.”14 This “realistic
probability” requires a showing that, at the time of an
alien’s removal proceeding, an actual (rather than
hypothetical) case exists “in which the relevant
criminal statute was applied to conduct that did not
involve moral turpitude.”15
If the statute has not been applied to conduct not
involving moral turpitude in “any case (including the
alien’s own case),” the inquiry ends under SilvaTrevino.16 The judge can now “reasonably conclude
that all convictions under the statute may categorically
be treated as ones involving moral turpitude.”17 If, on
the other hand, the practitioner finds a case in which
the assault statute was applied to conduct that did not
8
Silva-Trevino, 24 I. & N. Dec. at 705.
9
See id.
10
11
12
13
14
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December 15, 2008
involve moral turpitude, such as willful touching, the
practitioner should apply the modified categorical
approach (outlined below).18
In other words, Silva-Trevino discourages an attorney
from arguing that an offense such as assault and battery
is not a crime involving moral turpitude because the
minimal conduct that could hypothetically permit a
conviction under state or federal law — such as “mere
touching” — does not involve moral turpitude. The
Attorney General explicitly rejects such an analysis,
noting that “[i]magination is not … the appropriate
standard under the framework set forth in this
opinion.”19 Rather, the practitioner must remember to
show that at the time of the alien’s removal proceeding,
an actual case existed in which the assault and battery
statute was applied to “mere touching” or other
conduct that did not involve moral turpitude.20
A practitioner also does not need to show under SilvaTrevino that moral turpitude “inheres in the ‘usual’ or
‘common’ case” under a particular statute, as required
in the First and Eighth Circuits. For example, a
respondent’s attorney need not establish that an assault
and battery statute has been applied to “mere touching”
or other conduct not involving moral turpitude in the
average or “common” case.21 Such a requirement
would be “over-inclusive.”22 A single example of “any
actual case,” including a respondent’s own case, is all
that is necessary to establish a “realistic probability.”23
One strategy that practitioners could use to avoid the
negative implications of Silva-Trevino is to examine
how courts have treated the analysis in Gonzales v.
Duenas-Alvarez,24 which the Attorney General used as
a model for the “realistic probability” test. For
example, in United States v. Grisel, the Ninth Circuit
noted that “when a state statute explicitly defines a
crime more broadly than the generic definition, no
‘legal imagination’ is required” in determining that “a
realistic probability exists that the state will apply its
statute to conduct that falls outside the generic
definition of the crime.”25 Further, the Sixth Circuit has
found “realistic probability” under Duenas-Alvarez
when no state cases explicitly addressed whether a
Id. at 696.
18
See id. at 708.
Id.
19
Id. at 708.
Id.
20
See id. at 697.
See id. at 697.
21
See id.
See id
Id. at 687.
22
15
Id. at 697 (emphasis added).
23
See id. at 697, 704 n.4.
16
Id.
24
549 U.S. 183 (2007).
Id.
25
488 F.3d 844, 850 (9th Cir. 2007).
17
13 Bender’s Immigration Bulletin
criminal statute included a specific type of conduct, but
state cases “[made] it clear that” inclusion of that
conduct under the statute “is contemplated by law.”26
2.
Step Two: Modified Categorical Inquiry
The categorical approach will resolve some issues
involving moral turpitude under Silva-Trevino. For
example, the statute of conviction may clearly include
language that the courts have found involves moral
turpitude, or the statute may never have been applied to
conduct that does not involve moral turpitude. The
analysis may end at that point because the practitioner
could not meet the “realistic probability” test.27
But what happens if the respondent’s statute of
conviction has at some point been applied to conduct
that does not involve moral turpitude?
Silva-Trevino indicates that in that case, the
“categorical determination … does not end the moral
turpitude inquiry.” Rather, one should then proceed to
the second step of the analysis: the “modified
categorical inquiry.” 28
Under the modified categorical approach outlined in
Silva-Trevino, as in Board cases, the adjudicator
examines the record of conviction to determine
whether the offense in question involved moral
turpitude.29 For example, when an assault and battery
statute includes language relating to “mere touching”
as well as severe and intentional physical abuse, a
judge could consider “documents such as the
indictment, the judgment of conviction, jury
instructions, a signed guilty plea, or the plea transcript”
to determine whether the respondent’s conduct
transcended “mere touching” and involved a more
serious harm or intent to harm.30 If the record of
conviction indicates that the respondent’s behavior
transcended mere touching, for example, and involved
a beating coupled with threats of serious injury, the
inquiry would end at that point because it indicates an
involvement of moral turpitude.31
Before Silva-Trevino, the inquiry also might have
ended if the record of conviction provided no further
One of the boldest aspects of the analysis in SilvaTrevino is this optional third step following the
modified categorical inquiry. When the examination of
the record of conviction fails to indicate whether an
offense involves moral turpitude, the Attorney General
indicates that “immigration judges should be permitted
to consider evidence beyond that record if doing so is
necessary and appropriate to ensure proper application
of the Act’s moral turpitude provisions.”33
The Attorney General found that the Supreme Court’s
holdings in Taylor v. United States34 and Shepard v.
United States,35 which limit a court’s inquiry to an
alien’s formal conviction record, therefore no longer
apply when immigration courts adjudicate most crimes
involving moral turpitude.36 Why is this the case? The
Attorney General offers the following rationale: (1)
The context of Taylor and Shepard related to “factual
inquiries in criminal sentencing cases,” involving the
burdens of a retrial on sentencing and the “allocation of
tasks between judge and jury under the Sixth
Amendment.” Immigration proceedings, however, are
not criminal prosecutions, so they do not trigger the
Sixth Amendment.37 (2) “Moral turpitude” is not an
element of any criminal offense, so an examination of
the record of conviction is often not fruitful. Rather,
“the answer turns on factors beyond the elements” of
the crime, and evidence outside of the conviction
record can sometimes shed light on those factors.38
Silva-Trevino does not spell out when it is “necessary
and appropriate” to consider evidence outside of the
conviction record.39 The case thus leaves some room to
contest the application, or non-application, of this
standard. However, the case provides some concrete
guidance:
Id. at 699.
34
495 U.S. 575 (1990).
35
544 U.S. 13 (2005).
36
See Silva-Trevino, 24 I. & N. Dec. at 701.
37
Id.
See Silva-Trevino, 24 I. & N. Dec. at 699.
38
Id.
See id.; see also Short, 20 I. & N. Dec. at 136.
39
See id. at 701-03.
See Silva-Trevino, 24 I. & N. Dec. at 708.
Id. at 708.
See id. at 699; Matter of Ajami, 22 I. & N. Dec. 949, 950
(BIA 1999).
31
3. Step Three: Considering Evidence Beyond the
Record of Conviction
See Silva-Trevino, 24 I. & N. Dec. at 708-09.
29
30
information about the nature of the offense. However,
now if the record of conviction does not indicate that
the offense involved moral turpitude, the Attorney
General permits a third step: the consideration of
evidence outside of the record of conviction.32
33
See United States v. McGrattan, 504 F.3d 608, 614 (6th
Cir. 2007).
28
December 15, 2008
32
26
27
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13 Bender’s Immigration Bulletin
•
•
•
•
The evidence might include “evidence
otherwise admissible in removal proceedings,
including witness testimony.”40 However, the
immigration judge has the discretion to
“consider additional evidence or testimony”
only “when and to the extent he or she
determines that it is necessary.”41
This standard “does not mean that the parties
would be free to present ‘any and all evidence
bearing on an alien’s conduct leading to the
conviction.’”42
The examination of evidence outside the
conviction record is limited to “ascertain[ing]
the nature of a prior conviction; it is not an
invitation to relitigate the conviction itself.”43
“In many, if not most, cases,” the immigration
judge will not need to go beyond the record of
conviction.44
B. Mens rea
The Attorney General also addresses the mens rea
requirement for crimes involving moral turpitude. The
Board had offered guidance on this issue, noting that
moral turpitude typically includes some sort of
culpable mental state, typically involving intentional or
reckless behavior, specific intent, or willfulness.45
In discussing the definition of moral turpitude, the
Attorney General echoes a general sentiment that moral
turpitude does not depend on the “severity” of the
offense, but rather the “scienter” or mens rea,
combined with the reprehensible nature of the act.46
For example, an adjudicator may properly make a
categorical finding that conduct involves moral
turpitude when it results in a conviction of intentional
sexual contact with a person the defendant “knew” or
“reasonably should have known” was a child.47
40
Id. at 701 (citing Matter of Babaisakov, 24 I. & N. Dec.
306, 309-10 (BIA 2007)).
41
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December 15, 2008
More specifically, “scienter” can refer to “specific
intent, deliberateness, willfulness, or recklessness.”48
However, practitioners and adjudicators should be
careful before broadly applying moral turpitude to any
offense that requires these forms of “scienter.” The
Attorney General notes, for example, that “certain”
crimes involve moral turpitude when a conviction
requires willfulness or a knowing act, or recklessness.49
Therefore, “certain” other crimes may not. Context
matters — the offense must both include scienter and
be reprehensible.50 Because the term “reprehensible”
remains ambiguous, a search for prior case law
addressing moral turpitude of an offense may offer the
best guidance.
C. Other Issues Raised by Silva-Trevino
1. Aggravated Felonies
The Attorney General specifies that “this opinion does
not … extend beyond the moral turpitude issue” and
apply to aggravated felonies.51 Rather, moral turpitude
is unique in the sense that it “stands apart from the
elements of the [underlying criminal] offense.”52 The
Board has, in some cases, justified looking beyond the
record of conviction in aggravated felony cases, such
as those involving fraud or deceit in which the loss to
the victim or victims exceeds $10,000 under INA
§101(a)(43)(M)(i).53 However, in those cases, the
immigration judge makes a separate finding relating to
a loss that is not tied to the elements of a criminal
statute.54
2. Brand X Implications
Much of a practitioner’s strategy in addressing crimes
involving moral turpitude will depend on how the
circuit courts react to Silva-Trevino. In National Cable
& Telecommunications Ass’n v. Brand X Internet
Services,55 the Supreme Court noted that when a statute
is ambiguous, an agency may offer its own
interpretation of the statute that does not follow a
circuit court decision. Silva-Trevino notes “a
‘presumption that Congress, when it left ambiguity in a
statute meant for implementation by an agency,
Id. at 703.
42
Id. (citing Matter of Pichardo, 21 I. & N. Dec. 330, 335
(BIA 1996)).
48
Id. at 687.
49
See id. at 706 n.5.
43
Id.
50
44
Id.
Id.
51
Id. at 704.
52
Id. at. 704 (citing Ali, 521 F.3d at 743).
53
Babaisakov, 24 I. & N. Dec. 306, 309-10 (BIA 2007).
Silva-Trevino, 24 I. & N. Dec. at 706.
54
See Silva Trevino, 24 I. & N. Dec. at 701.
Id.
55
545 U.S. 967 (2005).
45
See, e.g., Matter of Solon, 24 I. & N. Dec. 239 (BIA 2007);
Matter of Kochlani, 24 I. & N. Dec. 128, 130-31 (BIA 2007);
Ajami, 22 I. & N. Dec. at 949.
46
47
13 Bender’s Immigration Bulletin
understood that the ambiguity would be resolved, first
and foremost, by the agency, and desired the agency
(rather than the courts) to possess whatever degree of
discretion the ambiguity allows.’”56
The Attorney General argues that the provisions
relating to crimes involving moral turpitude in the
Immigration and Nationality Act are sufficiently
ambiguous to trigger Brand X.57 The Act fails to define
the term “crime involving moral turpitude,” and does
not provide the courts with the methodology for
determining whether an offense comprises a crime
involving moral turpitude.58 However, this opinion
overtly criticizes First, Third, Fifth, and Eighth Circuit
opinions as “poorly designed to distinguish crimes that
involve moral turpitude from those that do not.”59 Only
time will tell whether the circuit courts will apply the
bold analysis in Silva-Trevino or dismiss it as an act of
defiance.
D. Conclusion
In summary, Silva-Trevino requires attention to the
following points when analyzing crimes involving
moral turpitude. First, when conducting a “categorical
inquiry,” the practitioner would continue to look to the
statute of conviction to determine whether the inherent
nature of the crime involves moral turpitude. However,
when a statute of conviction may apply to conduct that
does and does not involve moral turpitude, one would
need to establish a “realistic probability” that the
statute would be applied to “reach conduct that does
not involve moral turpitude.” In other words, SilvaTrevino requires that the practitioner demonstrate that
at the time of an alien’s removal proceeding, an actual
(rather than hypothetical) case exists “in which the
relevant criminal statute was applied to conduct that
did not involve moral turpitude.”
Second, if the categorical inquiry does not clarify
whether moral turpitude was involved in the case, or a
respondent’s statute of conviction has at some point
been applied to conduct that does not involve moral
turpitude, one would then proceed to the second step of
the analysis: the “modified categorical inquiry.” At this
stage, an immigration judge could consider “documents
such as the indictment, the judgment of conviction,
56
See Silva-Trevino, 24 I. & N. Dec. at 696 (quoting Brand
X, 545 U.S. at 982 (itself quoting Smiley v. Citibank (South
Dakota), N.A., 517 U.S. 735, 740-41 (1996), and citing
Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984)).
57
Silva-Trevino, 24 I. & N. Dec. at 695-96.
58
Id.
59
Id. at 695.
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December 15, 2008
jury instructions, a signed guilty plea, or the plea
transcript” to determine whether the respondent’s
conduct involves moral turpitude.
Third, Silva-Trevino permits a third step when a
modified categorical inquiry fails to resolve the issue:
The immigration judge is permitted to “consider
evidence beyond that record if doing so is necessary
and appropriate to ensure proper application of the
Act’s moral turpitude provisions.” This inquiry is
limited to “ascertain[ing] the nature of a prior
conviction; it is not an invitation to relitigate the
conviction itself.”
Fourth, Silva-Trevino serves as a reminder that in
addition to involving “base, vile, or depraved,” conduct
that is “contrary to the accepted rules of morality and
the duties owed between persons or to society in
general,” crimes involving moral turpitude must
include the appropriate mens rea. This “scienter”
requirement can refer to “specific intent,
deliberateness, willfulness, or recklessness.”
Finally, the Attorney General specifies in Silva-Trevino
that this case applies only to crimes involving moral
turpitude, and not aggravated felonies. Moreover,
practitioners should be aware of new circuit court cases
that respond to this case favorably or unfavorably. The
ultimate power of this case will depend on treatment by
the circuit courts following the Attorney General’s
invocation of Brand X.
___
Ann Atalla is the BIA Pro Bono Project Attorney at
the Catholic Legal Immigration Network in
Washington, DC. After obtaining degrees from the
University of Michigan and New York University, she
graduated from American University’s Washington
College of Law. She was selected for the Department
of Justice Attorney General’s Honors Program and
served as the Arlington Immigration Court’s Judicial
Law Clerk and Attorney Advisor from 2006 to 2008.
REMINDER:
The correct citation form for the BIB is Author, Title,
13 Bender's Immigr. Bull. 1423 (Dec. 15, 2008).