Criminal Defense of Immigrants


§ 20.33 A. Elements of Ground of Deportation

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This deportation ground requires the following five elements: 


(a)      a conviction of

(b)      a criminal offense,

(c)      involving moral turpitude,

(d)      committed within five years of the noncitizen’s last admission[223] into the United States, or 10 years if the noncitizen was admitted with an “S” visa,[224]

(e)      for which the maximum possible sentence was one year or more in custody.[225] 


This final requirement applies in all removal proceedings initiated on or after April 24, 1996.  Different forms of this sentence requirement apply to proceedings begun before that date.  See § 20.36, infra.

[223] See § § 17.5-17.8, supra.

[224] If the noncitizen was admitted into the United States by virtue of an “S” visa, granted for cooperation with law enforcement or prosecuting authorities in the investigation or prosecution of crime, under INA § 245(j), 8 U.S.C. § 1255(j), then the person is deportable if the offense was committed within 10 years of admission, instead of within five years.  INA § 237(a)(2)(A)(i)(I), 8 U.S.C. § 1227(a)(2)(A)(i)(I).  See § § 20.35(B), 20.37(C), infra.

[225] This is the current definition of this ground.  For deportation proceedings initiated prior to April 1, 1997, the person is not deportable unless s/he was actually sentenced to serve one year or more in custody as a result of the conviction.  See § 20.36, infra.



Sixth Circuit

Zhang v. Mukasey, 509 F.3d 313 (6th Cir. Nov. 29, 2007) (adjustment of status does not constitute an "admission" for purposes of starting the five-year period within which a CMT must be committed to trigger deportation under INA 237(a)(2)(A)(i), 8 U.S.C. 1227(a) (2)(A)(i)), agreeing with Shivaraman v. Ashcroft, 360 F.3d 1142, 1146 (9th Cir. 2004); Abdelqadar v. Gonzales, 413 F.3d 668, 673 (7th Cir. 2005); Aremu v. Dep't of Homeland Sec., 450 F.3d 578, 581 (4th Cir. 2006), vacating Matter of Shanu, 23 I. & N. Dec. 754 (BIA 2005), disagreeing with Matter of Shanu, 23 I. & N. Dec. 754 (BIA 2005), vacated by Aremu v. Dept. of Homeland Security, 450 F.3d 578 (4th Cir. 2006).


Article: Argument Silva-Trevino Applies Only to Crime of Moral Turpitude Ground of Inadmissibility, Not to the Grounds of Deportability

On November 7, 2008, former Attorney General Mukasey decided Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. November 7, 2008), in which he modified the categorical analysis used to determine whether a given conviction constitutes a crime of moral turpitude (CMT) for purposes of inadmissibility under INA 212(a)(2)(A)(i), 8 U.S.C. 1182(a)(2)(A)(i). He reasoned that because the CMT ground of inadmissibility refers to whether the immigrant admitted commission of a CMT, Congress intended that factual question to be relevant.

The relevant provisions contemplate a finding that the particular alien did or did not commit a crime involving moral turpitude before immigration penalties are or are not applied. Section 212(a)(2)(A)(i)(I), the inadmissibility provision at issue in this case, refers to "any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of a crime involving moral turpitude." (Emphasis added.) Section 237's removability provisions similarly pertain only to "[a]ny alien who is convicted of a crime involving moral turpitude" under certain enumerated circumstances, one of which relates to the alien's date of admissiona fact that would not typically be reflected in a criminal record of conviction. Sections 237(a)(2)(A)(i)-(ii) of the Act. To impose evidentiary limitations with the result that immigration penalties under section 212(a) or section 237 apply to aliens whose crimes did not involve moral turpitude, or with the result that aliens whose crimes did involve moral turpitude escape those penalties, is in tension with the text of those sections.

(Matter of Silva-Trevino, 24 I. & N. Dec. 687, 699-700 (A.G. November 7, 2008).)

The reference to the CMT ground of inadmissibility is apt: that ground of removal does refer to the commission of an offense, or acts constituting an offense. Silva-Trevino was an inadmissibility case, not a deportation case under INA 237(a)(2), 8 U.S.C. 1227(a)(2). The reference to the CMT ground of deportation, however, is dictum. Moreover, the language of the CMT deportation grounds does not refer to the commission of a CMT, or of acts constituting a CMT. It does refer, as Silva-Trevino pointed out, to the date of admission, which would not typically be reflected in a criminal record of conviction. (Id. at 700.) Therefore, the reasoning of Silva-Trevino, and its holding, do not apply to the CMT grounds of deportation. This difference between the two statutes is a distinction sufficient to require a different holding in a deportation case, which is technically not governed by the holding of Silva-Trevino.

This reasoning has begun to be adopted by Immigration Judges. For example, in one case, the immigration judge reasoned as follows:

It is unclear whether the portions [of the] Attorney General's decision allowing a factual inquiry into the nature of the acts engaged in by Respondent applies where, as here, ICE holds the burden of proving a conviction for a CIMT under 237(a)(2)(A)(i). First, the decision in Silva-Trevino rests on a rationale dependent in part upon language contained only in section 212(a)(2)(A)(i)(I), related to "admission" of certain "acts". [Footnote 4.]

[Footnote 4] The Attorney General Finds the statutory language to be ambiguous as to whether a factual inquiry is appropriate, rather than a strictly categorical one, holding that the language "cuts both ways." He finds that the language requiring a conviction cuts in favor of a purely categorical approach, but that language such as "involving" (which appears in both 212(a)(2)(A)(i)(I) and 237(a)(2)(A)(i)) and language such as "admits" the "commission" of certain "acts" (which appears only in 212 cut in favor of a factual inquiry. Thus, the language in 237 may be said to be less ambiguous, or at least less favoring of a factual inquiry, than is that in 212. See Silva-Trevino, supra, at 693 and 699.

Therefore, counsel is free to argue, and Immigration Judges are free to decide, that Silva-Trevino applies only in cases charging CMT inadmissibility, but not in cases charging CMT deportability.

DHS Urges BIA to Vacate Matter of Shanu Agreeing with amicus Legal Action Center, DHS urges BIA to overturn Matter of Shanu, which holds that "any admission" qualifies under INA 237(a)(2)(A)(i) (deportation ground based upon a conviction of a crime involving moral turpitude within five years of admission). AILA Doc. No. 10042960.