The Attorney General's decision in Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. Nov. 7, 2008), cuts two ways. It allows resort to the underlying facts of the case to deport where the immigrant in fact committed a crime of moral turpitude, even though the offense of conviction does not invariably involve moral turpitude when the elements are assessed under the categorical analysis. The reverse is true as well: a person convicted of a crime, which involves moral turpitude under the elements, is not deportable if the facts of the offense committed did not involve moral turpitude.



This conclusion arises not only from the language of the Silva-Trevino decision, but also from its rationale. In this case, the Attorney General criticized the categorical analysis, saying "these approaches do not adequately perform the function they are supposed to serve: distinguishing aliens who have committed crimes involving moral turpitude from those who have not." (Id. at 688.) In terming this a "shortcoming," the Attorney General implied that it was as much a shortcoming to deport those who had not committed a crime of moral turpitude, as to fail to deport those who had. Later in the opinion, he made this explicit:



By contrast, an approach [i.e., the categorical analysis] that applies the Acts moral turpitude provisions to all convictions under a particular criminal statute if moral turpitude inheres in the "usual" or "common" case is likely to be over-inclusive, because it would allow judges to apply the moral turpitude provisions to aliens whose crimes did not in fact "involve moral turpitude."



(Id. at 691, citing Marciano v. INS, 450 F.2d 1022, 1028 (8th Cir. 1971) [ "The statute says deportation shall follow when the crime committed involves moral turpitude, not when that type of crime commonly or usually does."].)



The Attorney General thus condemns the categorical analysis both for failing to deport those who did commit a crime of moral turpitude, and for deporting those who did not. His solution allows the adjudicator to examine the underlying facts of the case to determine whether the offender in fact committed a crime of moral turpitude.



This is a two-way street. If the respondent did not, in fact, commit a crime of moral turpitude, there should be no removal order under the Silva-Trevino analysis. To order removal under those circumstances would be "over-inclusive" with respect to the purpose of this ground of removal, which seeks to deport only those who in fact committed a crime of moral turpitude.



There are many examples of offenses that in the abstract involve moral turpitude, but where the individual facts of the case do not. Even the offense of theft, with an element requiring intent to permanently deprive the owner of the property, may or may not in fact involve moral turpitude. See United States ex rel. Rizzio v Kenney, 50 F.2d 418 (D.Conn. 1931) (court stated theft always involves moral turpitude, except in unusual circumstances). It has sometimes been suggested that extremely minor thefts or ones committed under extenuating circumstances might not involve moral turpitude. Diaz v. Haig, 594 F.Supp. 1 (D.Wyo. 1981) (theft of food by hungry child or theft of garments by ill-clothed child does not constitute crime of "moral turpitude"); Quilodran-Brau v. Holland, 232 F.2d 183 (3d Cir. 1956) (court expressly did not decide whether there might be exception in extreme case).



As a general matter, however, even petty theft has been found to be CMT, irrespective of the lack of gravity of the offense. Pino v. Landon, 349 U.S. 901 (1955) (petty theft of a dozen golf balls held CMT on principle); Orlando v. Robinson, 262 F.2d 850, 851 (7th Cir. 1959), cert. den., 359 U.S. 980, 3 L.Ed.2d 929, 79 S.Ct. 898 (1959) (larceny of sealed Christmas package that, when opened, proved worth only five dollars held CMT); Quilodran-Brau v. Holland, 232 F.2d 183 (3d Cir. 1956) (court expressly did not decide whether there might be exception in extreme case); Pino v. Nicolls, 215 F.2d 237 (1st Cir. 1954), revd on other grounds sub nom. Wilson v. Carr, 41 F.2d 704 (9th Cir. 1930); Tillinghast v. Edmead, 31 F.2d 81 (1st Cir. 1929) (noncitizen convicted of stealing $15 and sentenced to confinement for one year was deportable, even though Massachusetts law classified the offense as a "misdemeanor"); Henry v. Ashcroft, 175 F.Supp.2d 688 (S.D.N.Y. 2001) (petty larceny held to be a crime involving moral turpitude); Zgodda v. Holland, 184 F.Supp. 847 (E.D.Pa. 1960) (German conviction as a young girl in 1944, of simple larceny for stealing a small sum of money and a few articles of clothing, apparently motivated by privation, at a time when that city was under severe air attack and the population lived largely underground, held CMT, even though the conviction was expunged from the records under German law in 1954).



The categorical analysis has until now prevented respondents from arguing that they did not in fact commit a crime of moral turpitude because the adjudicator has heretofore been prohibited from considering the facts of the case. Where a conviction under a statute prohibiting stealing invariably involved moral turpitude, the court was not permitted to examine the record of conviction to determine it did not involve CMT. Matter of Garcia, 11 I. & N. Dec. 521 (BIA 1966) (BIA precluded from going beyond record of conviction to consider mitigating circumstances).



Under Silva-Trevino, however, the adjudicator can consider the facts of the case to determine whether the defendant in fact committed a CMT, even though the offense constitutes a CMT under the categorical analysis, because to fail to allow this would result in an "over-inclusive" removal order where the noncitizen did not in fact commit a CMT. The adjudicator can consider whether the defendant stole something too insignificant to amount to moral turpitude, or whether the theft was justified by hunger, or poverty, to the extent that it cannot be said factually to involve moral turpitude.



The same should hold true for other types of offenses as well. For example, a fraud offense in which the loss was de minimis, or too small to be significant, should not be considered a CMT under the facts of the case, as when it is a joke like using a two-headed coin to settle a question. It would be necessary, of course, to meet the "realistic probability of prosecution" test, but that is met by showing that even one such case was actually prosecuted, so every noncitizen whose individual case is too minor to be considered sufficiently evil to amount to moral turpitude will automatically meet this test by showing the facts of his or her own case.