(B)

Seventh Circuit.  In a recent ill-reasoned decision, the Seventh Circuit held that neither the Taylor categorical analysis, nor the limitation to the record of conviction for determining the nature of a conviction for immigration purposes, strictly applies to the determination of whether a conviction is a crime involving moral turpitude.[34]  The court’s reasoning is based largely on recent decisions from the BIA and the Third Circuit in the aggravated felony context.  Riddled with fundamental and embarrassing errors, this decision should be reversed en banc in the Seventh Circuit, and should not be followed either by the BIA nationally, or within any other circuit, for a number of reasons.

 

Some circuits held that certain aggravated felonies depend on factors beyond the elements of the offense of conviction.[35]  In Matter of Gertsenshteyn,[3] the BIA expanded upon this analysis:

 

[W]here Congress has defined an aggravated felony to include a component (e.g., ‘commercial advantage’) that is neither an element of the underlying offense nor a basis for a sentence enhancement, and thus would not normally be alleged in a criminal charging instrument, it would defeat the statute to require the application of the categorical (or modified categorical) approach, in which only the statute itself and the limited material constituting the record of conviction may be consulted.[4]

 

While this analysis is largely the same as that now applied in the Third Circuit, the BIA went beyond merely adopting an “extra element” analysis by concluding that any extra elements “may be proved by any evidence, including evidence outside the record of conviction.”[5]  The BIA equated this record-of-conviction-free analysis to the determination of whether an offense is a “particularly serious crime” for asylum and withholding purposes, and found that “[a]lthough some burden to the system may result from the inapplicability of the categorical approach in this instance, we believe such burden to be minor.”[6] 

 

            In Matter of Babaisakov,[36] the BIA applied Gertsenshteyn to an aggravated felony fraud case arising out of the third circuit.  The BIA found there was no need to limit its examination to the record of conviction when faced with an “extra element.”  The court stated that it would “leave for another day any questions that may arise with respect to circuit law that may be in tension with this decision . . . .”[37]  The BIA also found that it did not matter that such facts were not proven beyond a reasonable doubt – anything shown by a preponderance of the evidence was deemed sufficient.[38]  

 

            The Seventh Circuit, already inconsistent in its application of the categorical approach,[39] has extended Babaisakov to the CMT context:

 

            Our decisions in Hashish, Padilla, and similar cases apply to immigration law the approach that Taylor v. United States, 495 U .S. 575 (1990), and Shepard v. United States, 544 U.S. 13 (2005), adopt for recidivist enhancements in federal criminal prosecutions. The Supreme Court gave two principal reasons: in Taylor it stressed the benefits of simple application, so that sentencing not be burdened by a retrial of the original prosecution, and in Shepard it stressed the allocation of tasks between judge and jury under the sixth amendment. The Justices adopted a rule that prevented the sentencing judge in the new case from assuming a role that the Constitution assigns to the jurors in the first case. Neither of these reasons applies to immigration proceedings. They are not criminal prosecutions, so the sixth amendment and the doctrine of Apprendi v. New Jersey, 530 U.S. 466 (2000), do not come into play. And how much time the agency wants to devote to the resolution of particular issues is, we should suppose, a question for the agency itself rather than the judiciary. See Conteh v. Gonzales, 461 F.3d 45 (1st Cir.2006) (adopting for immigration cases what the court called a “modified categorical approach” rather than the rule that Taylor and Shepard devise for criminal prosecutions).[40]

 

Granting the BIA Chevron and Brand X[41] deference, the court announced a new rule: “when deciding how to classify convictions under criteria that go beyond the criminal charge – such as the amount of a victim’s loss, or whether the crime is one of ‘moral turpitude’, the agency has the discretion to consider evidence beyond the charging papers and judgment of conviction.”[42]  The Seventh Circuit found all of its prior decisions following Taylor and Shepard in the CMT context to be inapposite in light of Matter of Babaisakov.[43]

 

            In announcing this rule, the court touched upon the distinction between proving the “existence” of a conviction, using the documents listed at INA § 240(c)(3)(B), and proving the “nature” of the conviction.  While proving the “nature” of a conviction had previously been limited to the documents itemized in Taylor and Shepard, a conspicuously narrower set of documents than those listed in INA § 240(c)(3)(B), the Seventh Circuit held that while examination of a pre-sentence report is insufficient to prove the existence of a conviction, it may be considered in determining whether a conviction constitutes a CMT.[44]

 

            There are a number of arguments why this decision should be limited or overruled that deserve consideration:

 

            (1)  It is limited to the CMT context, since the CMT concept is highly ambiguous, thus, according to Ali, opening the door to deference to the BIA.  The same claim of ambiguity does not apply to other well-defined removal grounds, and so this analysis should not apply to them.

 

            (2)  It conflicts with other panel decisions in the Seventh Circuit, which apply the categorical analysis to CMT decisions, and its reasoning for doing so is deeply flawed; it also conflicts with other decisions of the BIA[45] (to which the court states it grants deference), and with decisions of the United States Supreme Court.[46]

 

            (3)  It also contains a number of serious errors and contradictions.  For example, the court fails to make the distinction between the statutory offense to which a criminal defendant enters a plea of guilty, and the actual facts of the crime. 

 

(4)  Its claim that deference is due to the BIA on the definition of a CMT is unwarranted, because the CMT context has application in the criminal area, as well as in certain civil contexts, and so its definition has not been exclusively entrusted to the immigration authorities.  It conflicts with a prior Seventh Circuit decision which encouraged the BIA to look to other contexts in making a determination whether an offense is a CMT, and suggested that because the BIA is not the only source of CMT law, it should not be accorded Chevron deference.[47]

 

            (5)  The BIA decision in Babaisakov, to which the Seventh Circuit defers, is itself an unwarranted and unjustified abandonment of a hundred years of BIA jurisprudence, and is therefore legally invalid.  The Board of Immigration Appeals has uniformly applied this analysis across the board to every conviction-based ground of deportation, including crimes of moral turpitude, controlled substances offenses, firearms offenses, domestic violence convictions, and aggravated felony convictions.[48]   The BIA may not arbitrarily change its published interpretation of the law without providing a reasoned explanation.[49]  In particular, it cannot lawfully simply rubber-stamp a decision of an Immigration Judge violating these rules via a streamlining process.[50]

 

            (6)  The BIA's interpretation of the CMT definition also does not deserve deference, since the Supreme Court held the concept is not ambiguous.[51]

 

            (7)  The Seventh Circuit has opened the door to the consideration of the underlying facts of the case in determining whether a conviction constitutes a CMT.  Counsel for noncitizens can therefore introduce any non-record facts into evidence in the immigration proceedings in an effort to establish that the noncitizen's behavior did not in fact in this individual case show moral turpitude.  For example, counsel can show the noncitizen stole bread to feed his starving daughter, clearly not an act of moral turpitude.

[52] Ali v. Mukasey, 521 F.3d 737 (7th Cir. Apr. 4, 2008).

[53] E.g., Singh v. Ashcroft, 383 F.3d 144 (3d Cir. 2004) ( dictum stating that the aggravated felony definition explicitly required additional information in order to determine the nature of some removal grounds – the most obvious of these being the “loss to the victim” requirement of INA § 101(a)(43)(M)(i)); Alaka v. Attorney General, 456 F.3d 88 (3d Cir. Jul. 18, 2006).

[54] Matter of Gertsenshteyn, 24 I. & N. Dec. 111 (BIA 2007) (federal conviction of 18 U.S.C. § 2422 is an aggravated felony prostitution offense where committed for commercial advantage).

[55] Id. at 114.

[34] Matter of Gertsenshteyn, 24 I. & N. Dec. at 112 (emphasis added).

[35] Id. at 116. 

[36] Matter of Babaisakov, 24 I. & N. Dec. 306 (BIA 2007) (federal conviction for violation of 18 U.S.C. § 1341, mail fraud, is an aggravated felony fraud offense for immigration purposes under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), where the loss to the victim exceeds $10,000).

[37] Matter of Babaisakov, 24 I. & N. Dec. at 322.

[38] This idea was lifted from Conteh v. Gonzales, 641 F.3d 45 (1st Cir. 2006) (the “modified categorical analysis” is not limited to facts/elements found beyond a reasonable doubt).

[39] See, e.g., Sharashidze v. Gonzoles, 480 F.3d 566 (7th Cir. Mar. 16, 2007) (Illinois conviction of misdemeanor indecent solicitation of a sex act, under 720 ILCS 5/11-14.1 [“offers a person not his or her spouse any money, property, token, object, or article or anything of value to perform any act of sexual penetration as defined in Section 12-12 of this Code, or any touching, or fondling of the sex organs of one person by another person for the purpose of sexual arousal or gratification],” held deportable where the offense in fact involved a minor constituted an aggravated felony sexual abuse of a minor offense for removal purposes under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A)).

[40] Ali v. Mukasey, 521 F.3d 737, 741 (7th Cir. Apr. 4, 2008).

[41] National Cable & Telecommunications Association v. Brand X Internet Services, 545 U.S. 967 (2005).

[42] Ali v. Mukasey, 521 F.3d 737, 743 (7th Cir. April 4, 2008).

[43] Id. at *4.

[44] Id. at *5.

[45] See, e.g., Matter of Sejas, 24 I. & N. Dec. 236 (BIA 2007) (applying categorical analysis to CMT issue); Matter of Aruna, 24 I. & N. Dec. 452 (BIA 2008) (applying categorical analysis to aggravated felony determination).

[46] See, e.g, Gonzales v. Duenas-Alvarez, 549 U.S. 183, 127 S.Ct. 815 (Jan. 17, 2007).

[47] Garcia-Meza v. Mukasey, 516 F.3d 535 (7th Cir. Feb. 5, 2008). 

[48] See, e.g., Matter of Teixeira, 21 I. & N. Dec. 316 (BIA 1996) (holding police reports not part of record of conviction in deciding firearm deportability); Matter of Pichardo, 21 I. & N. Dec. 330 (BIA 1996) (holding that testimony in immigration court was not part of record of conviction for determining firearm deportability); Matter of Short, 20 I. & N. Dec. 136 (BIA 1989) (same for moral turpitude deportability); Matter of Sweetser, 22 I. & N. Dec. 709 (BIA 1999)(same for aggravated felony ground of deportation).

[49] See, e.g., Rust v. Sullivan, 500 U.S. 173 (1991) (allowing agency to change its interpretation, but only if it provided a reasoned explanation).

[50] Ng v. Att’y Gen., 436 F.3d 392, 395 n.4 (3d Cir. Feb. 7, 2006) (open question whether court of appeals owes Chevron deference to BIA streamlining decision merely rubber-stamping Immigration Judge’s decision: “We have also previously questioned whether a BIA decision is entitled to deference when, as here, the BIA has affirmed without opinion the decision of the IJ pursuant to 8 C.F.R. § 1003.1(e)(4).  See Smiriko v. Ashcroft, 387 F.3d 279, 289 n.6 [“[I]t would seem to be, at the very least, an open question as to whether an IJ’s decision affirmed through the streamlining process would be entitled to Chevron deference . . .  [D]eferring to the reasoning of an IJ from which the BIA would be free to depart in other cases would seem highly problematic.”); cf. Singh, 383 F.3d at 152 (“[T]he BIA, by affirming without opinion, gave no considered and authoritative agency-wide interpretation of the statute . . . .”)).

[51] See Jordan v. De George, 341 U.S. 223 (1951) (CMT concept not void for vagueness; court considered decisions defining it as including fraud).

NATURE OF CONVICTION - CATEGORICAL ANALYSIS
Chambers v. United States, ___ U.S. ___, 129 S.Ct. 687, 2009 WL 63882 (Jan. 13, 2009) (Illinois conviction of "knowingly fail[ing] to report" for periodic imprisonment "to the Jefferson County Jail, a penal institution", in violation of Ill. Comp. Stat., ch. 720, 5/31-6(a), did not categorically constitute a "violent felony" for purposes of applying the Armed Career Criminal Act's 15-year mandatory prison term enhancement of sentence for a conviction of being a felon unlawfully in possession of a firearm, in violation of 18 U.S.C. 922(g), because it does not have "as an element the use, attempted use, or threatened use of physical force against the person of another, a does not involve conduct that presents a serious potential risk of physical injury to another), following Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990); see also Shepard v. United States, 544 U.S. 13, 16-17, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005).

CRIMES OF MORAL TURPITUDE " ANALYSIS
The Immigrant Legal Resource Center has published an analysis of Matter of Guevara Alfaro, 25 I. & N. Dec. 417 (BIA 2011) (California conviction of sexual intercourse with a minor (statutory rape), in violation of Penal Code 261.5(d), does not categorically constitute a crime involving moral turpitude): Because the Ninth Circuits earlier decision interpreting Californias sexual intercourse with a minor offense used the traditional categorical approach rather than the Silva-Trevio approach, the Board concluded that the earlier Ninth Circuit decision is not binding. Matter of Guevara Alfaro, 25 I&N Dec. at 421. Instead, the Board h[e]ld that the Attorney Generals substantive ruling in Silva-Trevino is binding in this case and must be applied in lieu of Quintero-Salazar to the extent that the two cases conflict. Matter of Guevara Alfaro, 25 I&N Dec. at 421 (citing Natl Cable & Telecomms. Assn v. Brand X Internet Servs., 545 U.S. 967, 980-82 (2005)). Despite refusing to follow the Ninth Circuits earlier decision, the Board reached the same result regarding the first prong of Silva-Trevio. The California statute, it noted, does not require a perpetrator to have engaged in intentional sexual contact with someone he or she knew or should have known to be a child. Matter of Guevara Alfaro, 25 I&N Dec. at 424. As such, the statute fails the categorical approach that, as announced in Silva-Trevio, counsels that an offense is not a CIMT if there is a realistic probability that non-morally turpitudinous conduct would be criminally prosecuted under that statute. Matter of Guevara Alfaro, 25 I&N Dec. at 424. In California, the Board concluded, there is a realistic probability it could be applied to conduct that does not involve moral turpitude. Matter of Guevara Alfaro, 25 I&N Dec. at 424. The Board then turned to Silva-Trevios second prong"the modified categorical approach in which the IJ can examine the record of conviction to determine whether moral turpitude is present. The BIA found that there are no documents in the record of conviction establishing that the respondent knew or should have known that his victim was a child. Matter of Guevara Alfaro, 25 I&N Dec. at 424. Lastly, turning to Silva-Trevios third prong"which I describe as the anything goes prong because it allows an IJ to consider what seems to be a limitless array of evidence beyond the statute or record of conviction"the Board noted that the noncitizen did not deny knowledge of his victims age. Matter of Guevara Alfaro, 25 I&N Dec. at 424. The IJ, however, did not make any findings regarding whether the noncitizen knew or should have known the victims age, therefore the Board remanded the case so that the IJ could make appropriate findings. Matter of Guevara Alfaro, 25 I&N Dec. at 424. The implication, of course, is that on remand this may prove to be a CIMT thanks to the anything goes prong. Thanks to Kathy Brady, Immigrant Legal Resource Center.

BIA

CRIMES OF MORAL TURPITUDE " NATURE OF CONVICTION " CATEGORICAL ANALYSIS
Matter of Silva-Trevino, 26 I&N Dec. 550 (A.G. Apr. 10, 2015) (immigration adjudicators are no longer allowed to go outside the record of conviction to determine whether a conviction constitutes a crime of moral turpitude), vacating 24 I & N Dec 687 (A.G. 2008). Note: The Attorney General pointed out that nothing in this decision is intended to affect BIA determinations that a conviction does or does not entail reprehensible conducted committed with some degree of scienter and is or is not a crime involving moral turpitude for that reason, which has been applied by the BIA in four decisions following Silva-Trevino, supra.

CONVICTION " CATEGORICAL ANALYSIS " DIVISIBLE STATUTE
Matter of Chairez, 26 I&N Dec. 478 (BIA 2015) (Chairez II) (Chairez Is interpretation of the divisibility standard used in the modified categorical analysis " adopting the Supreme Courts view in Descamps v. United States, 133 S. Ct. 2276 (2013), will only apply in circuits that have not explained how they understand divisibility after Descamps was decided; therefore, the test for when a statute is divisible will have to be litigated on a circuit-by-circuit basis); clarifying Matter of Chairez, 26 I&N Dec. 349 (BIA 2014) (Chairez I) (a statute defining a criminal offense is divisible only if (1) it lists multiple discrete offenses as enumerated alternatives or defines a single offense by reference to disjunctive sets of elements, more than one combination of which could support a conviction; and (2) at least one, but not all, of those listed offenses or combinations of disjunctive elements is a categorical match to the relevant generic standard; an element is facts that a jury has to find unanimously and beyond a reasonable doubt. And it distinguished alternate means to commit an offense, which do not require jury unanimity). NOTE: The BIA determined that since no deference is owed under Chevron to divisibility analysis, the Immigration Judge must follow the interpretation of Descamps applied within the Tenth Circuit under United States v. Trent, 767 F.3d 1046 (10th Cir. 2014): In Trent, the Tenth Circuit acknowledged that a statute is divisible under Descamps only if it is broken down into alternative elements or potential offense elements, but it concluded that the Descamps Court did not understand the term element to mean only those facts about a crime that must be proved to a jury unanimously and beyond a reasonable doubt. United States v. Trent, 767 F.3d at 105861. Instead, the Trent court concluded that a statute is divisible within the meaning of Descamps whenever it employs alternative statutory phrases. Id. at 106061 (citing Descamps v. United States, 133 S. Ct. at 2285 n.2). Matter of Chairez, 26 I&N Dec. at 482. The National Immigration Project of the National Lawyers Guild and the Immigration Defense Project published a practice advisory linked below that explains the decision detail, and suggests that the BIA is misreading Trent. http://nationalimmigrationproject.org/legalresources/practice_advisories/Chairez-Castrejon%20Advisory.pdf

CONVICTION"NATURE OF CONVICTION"CATEGORICAL ANALYSIS"DIVISIBLE STATUTES"BROAD OR NARROW INTEPRETATION
Matter of Lanferman, 25 I. & N. Dec. 721 (BIA Mar. 9, 2012) (a criminal statute is divisible, regardless of its structure, if, based on the elements of the offense, some but not all violations of the statute give rise to grounds for removal or ineligibility for relief: [W]e have traditionally applied divisibility analysis to all manner of statutes, regardless of their structure. . Adopting the broadest approach[] is also consistent with the view we share with some courts of appeals that the categorical approach itself need not be applied with the same rigor in the immigration context as in the criminal arena, where it was developed.). Note: This decision essentially adopts the reasoning of United States v. Aguila"Montes de Oca, 655 F.3d 915 (9th Cir.2011) (en banc), nation-wide. In addition, it suggests that the categorical analysis in the immigration context is different from the categorical analysis in the criminal context, and thus the BIA gets Brand-X deference. These two aspects of the decision should be challenged wherever possible, as they fly in the face of many years of consistent application of the strict categorical analysis. For example, the BIA had previously held: We note that the statute under which the respondent was convicted is divisible, meaning it encompasses offenses that include as an element the use, attempted use, or threatened use of physical force against the person or property of another, as well as offenses that do not. Where a statute under which an alien was convicted is divisible, we look to the record of conviction, and to other documents admissible as evidence in proving a criminal conviction, to determine whether the specific offense of which the alien was convicted will sustain a ground of deportability under section 241(a) (2) (A) (iii) of the Act. This approach does not involve an inquiry into facts previously presented and tried. Instead the focus is on the elements required to sustain the conviction. (Matter of Sweetser, 22 I. & N. Dec. 709 (BIA 1999). And, in another case: In accordance with this longstanding body of circuit precedent, we have from our earliest days espoused the same principle, resulting in an analytical approach that is essentially identical to the `categorical approach' adopted by the Supreme Court in both the sentencing and immigration contexts. (Matter of Velazquez Herrera, 24 I. & N. Dec. 503 (BIA May 20, 2008). The BIA in Lanferman did not explain or justify its changes in analysis from the categorical analysis consistently applied before. Thanks to Jonathan Moore.

First Circuit

NATURE OF CONVICTION " CATEGORICAL ANALYSIS " MINIMUM CONDUCT " BURDEN
Sauceda v. Lynch, ___ F.3d ___ (1st Cir. Apr. 22, 2016) (a non-citizen can qualify for cancellation of removal without having to prove affirmatively that a conviction wasn't for a disqualifying conviction: "We hold that since all the Shepard documents have been produced and the modified categorical approach using such documents cannot identify the prong of the divisible Maine statute under which Peralta Sauceda was convicted, the unrebutted Moncrieffe presumption applies, and, as a matter of law, Peralta Sauceda was not convicted of a "crime of domestic violence."). NOTE: This case addresses the issue of who wins a divisible statute argument when the record of conviction is unclear which part of the statute the noncitizen was convicted under. The Ninth Circuit went back and forth on this issue for several years. See Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1130-31 (9th Cir. 2007); Young v. Holder, 697 F.3d 976, 988"90 (9th Cir.2012) (en banc). Ultimately, however, the Ninth Circuit left this question open following Moncrieffe. See Almanza Arenas v. Lynch, 815 F.3d 469 (9th Cir. 2016). This appears to be the first Circuit Court decision to definitively apply Moncrieffe to find that the categorical (and modified categorical) analysis is a question of law, and does not depend upon whether the Government or the Respondent bears the burden of proof.

Second Circuit

CONVICTION " CATEGORICAL ANALYSIS " DIVISIBLE STATUTE
Flores v. Holder, ___ F.3d ___, 2015 WL 795212 (2d Cir. Feb. 26, 2015) (rejecting government argument that the agency is not bound to follow Descamps on the basis that the case arose in the sentencing context; the BIA is bound to apply divisibility consistently with the individual circuits' interpretation of divisibility under Descamps.); following In re Chairez"Castrejon, 26 I. & N. Dec. 349, 354 (BIA 2014); accord, Kaufmann v. Holder, 759 F.3d 6, 8"9 (1st Cir.2014); Aguilar"Turcios v. Holder, 740 F.3d 1294, 1301"02 (9th Cir.2014); Donawa v. U.S. Attorney Gen., 735 F.3d 1275, 1280 n. 3 (11th Cir.2013); Rojas v. Attorney Gen. of U.S., 728 F.3d 203, 216 n. 12 (3d Cir.2013) (en banc).

Third Circuit

CATEGORICAL ANALYSIS - BURDEN OF PROOF - EXTRA ELEMENT
Nijhawan v. Attorney General, 523 F.3d 387 (3d Cir. May 2, 2008) (rejecting argument that loss must be established beyond a reasonable doubt by criminal court: "we should not raise an aspect of an immigration statute to the level of an element of a criminal offense, as the dissent urges, merely because requiring that it be a part of the conviction eases a courts decision-making process.")

Fourth Circuit

CRIMES OF MORAL TURPITUDE " NATURE OF CONVICTION " CATEGORICAL ANALYSIS " SILVA TREVINO
Prudencio v. Holder, 669 F.3d 472 (4th Cir. Jan. 30, 2012) (the Attorney Generals method to determine whether a conviction is a crime of moral turpitude, set forth in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), is not an authorized exercise of his discretion under Chevron).

Fifth Circuit

CRIMES OF MORAL TURPITUDE " ANALYIS LIMITED TO TRADITIONAL CATEGORICAL ANLYSIS
Silva-Trevino v. Holder, 742 F.3d 197, 200 (5th Cir. Jan. 30, 2014) (immigration judge cannot consider extrinsic evidence to determine whether an alien was convicted of a crime involving moral turpitude: We have long held that, in making this determination, judges may consider only the inherent nature of the crime, as defined in the statute, or, in the case of divisible statutes, the alien's record of conviction. Amouzadeh v. Winfrey, 467 F.3d 451, 455 (5th Cir.2006) (internal quotation marks and citations omitted); U.S. ex rel. McKenzie v. Savoretti, 200 F.2d 546, 548 (1952). We do not permit extrinsic inquiry into the circumstances surrounding the particular transgression. Amouzadeh, 467 F.3d at 455.); reversing Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. Nov. 7, 2008). Note: The circuits are in conflict on this issue. Five circuits, now including the Fifth Circuit, agree that the immigration court must apply the categorical analysis to the question whether a conviction is a crime of moral turpitude, and may not go outside the record of conviction, except in the case of a divisible statute. Only the Seventh and Eighth Circuits disagree. As the court in Silva-Trevino summarized: The Third, Fourth, Ninth, and Eleventh Circuits found the language unambiguous and thus withheld deference. See generally Olivas"Motta v. Holder, 716 F.3d 1199 (9th Cir.2013); Prudencio v. Holder, 669 F.3d 472 (4th Cir.2012); Fajardo v. U.S. Attorney General, 659 F.3d 1303 (11th Cir.2011); Jean"Louis v. Attorney General of U.S., 582 F.3d 462 (3d Cir.2009). The Seventh Circuit, however, has afforded the decision deference under Chevron, 467 U.S. 837, 104 S.Ct. 2778 (1984). See Ali v. Mukasey, 521 F.3d 737, 739 (7th Cir.2008) ([A]s the board has done this through formal adjudication[,] the agency is entitled to the respect afforded by the Chevron doctrine.). The Eighth Circuit initially rejected the Silva"Trevino approach, but a later panel held that the opinion warrants deference. Compare Guardado"Garcia v. Holder, 615 F.3d 900, 902 (8th Cir.2010) (We are bound by our circuit's precedent, and to the extent Silva"Trevino is inconsistent, we adhere to circuit law.), with Bobadilla v. Holder, 679 F.3d 1052, 1057 (8th Cir.2012) (We conclude that the methodology is a reasonable interpretation of the statute and therefore must be given deference by a reviewing court.). Id. at 200 n.1.

CRIMES OF MORAL TURPITUDE " ANALYIS LIMITED TO TRADITIONAL CATEGORICAL ANLYSIS
Silva-Trevino v. Holder, 742 F.3d 197, 200 (5th Cir. Jan. 30, 2014) (immigration judge cannot consider extrinsic evidence to determine whether an alien was convicted of a crime involving moral turpitude: We have long held that, in making this determination, judges may consider only the inherent nature of the crime, as defined in the statute, or, in the case of divisible statutes, the alien's record of conviction. Amouzadeh v. Winfrey, 467 F.3d 451, 455 (5th Cir.2006) (internal quotation marks and citations omitted); U.S. ex rel. McKenzie v. Savoretti, 200 F.2d 546, 548 (1952). We do not permit extrinsic inquiry into the circumstances surrounding the particular transgression. Amouzadeh, 467 F.3d at 455.); reversing Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. Nov. 7, 2008). Note: The circuits are in conflict on this issue. Five circuits, now including the Fifth Circuit, agree that the immigration court must apply the categorical analysis to the question whether a conviction is a crime of moral turpitude, and may not go outside the record of conviction, except in the case of a divisible statute. Only the Seventh and Eighth Circuits disagree. As the court in Silva-Trevino summarized: The Third, Fourth, Ninth, and Eleventh Circuits found the language unambiguous and thus withheld deference. See generally Olivas"Motta v. Holder, 716 F.3d 1199 (9th Cir.2013); Prudencio v. Holder, 669 F.3d 472 (4th Cir.2012); Fajardo v. U.S. Attorney General, 659 F.3d 1303 (11th Cir.2011); Jean"Louis v. Attorney General of U.S., 582 F.3d 462 (3d Cir.2009). The Seventh Circuit, however, has afforded the decision deference under Chevron, 467 U.S. 837, 104 S.Ct. 2778 (1984). See Ali v. Mukasey, 521 F.3d 737, 739 (7th Cir.2008) ([A]s the board has done this through formal adjudication[,] the agency is entitled to the respect afforded by the Chevron doctrine.). The Eighth Circuit initially rejected the Silva"Trevino approach, but a later panel held that the opinion warrants deference. Compare Guardado"Garcia v. Holder, 615 F.3d 900, 902 (8th Cir.2010) (We are bound by our circuit's precedent, and to the extent Silva"Trevino is inconsistent, we adhere to circuit law.), with Bobadilla v. Holder, 679 F.3d 1052, 1057 (8th Cir.2012) (We conclude that the methodology is a reasonable interpretation of the statute and therefore must be given deference by a reviewing court.). Id. at 200 n.1.

CATEGORICAL ANALYSIS " CRIMES OF MORAL TURPITUDE " SILVA-TREVINO
Esparza-Rodriguez v. Holder, 699 F.3d 821, 825 n.8 (5th Cir. Oct. 18, 2012) (the third-step of Silva-Trevino, which looks to the underlying facts of the conviction and beyond the record of conviction, to be inconsistent with Fifth Circuit case law), citing Bianco v. Holder, 624 F.3d 265, 269 (5th Cir.2010).

Seventh Circuit

CRIMES OF MORAL TURPITUDE " SILVA-TREVINO ANALYSIS " IMMIGRATION AUTHORITIES MUST EXERCISE DISCRETION WHETHER TO CONSIDER EVIDENCE OUTSIDE THE RECORD
Sanchez v. Holder, ___ F.3d ___, ___, 2014 WL 3329186 (7th Cir. Jul. 9, 2014) (True, the IJ and the Board retain substantial discretion in making the decision to consider evidence outside the formal record of conviction. Mata"Guerrero v. Holder, 639 F.3d 276, 277 (7th Cir.2011). However, the adjudicator must still exercise that discretion: The Board should have explained its determination that additional evidence was not necessary or appropriate to resolve the moral turpitude question, if that was indeed what the Board thought. See Silva"Trevino, 24 I. & N. Dec. at 704. But if anything, the Board's reasoning suggests that additional evidence was necessary.).

CRIMES OF MORAL TURPITUDE " FAILURE TO REGISTER AS A SEX OFFENDER " IJ ORDERED TO USE SILVA-TREVINO ANALYSIS
Mata-Guerrero v. Holder, 627 F.3d 256 (7th Cir. Nov. 24, 2010) (case remanded for the BIA to apply Matter of Silva-Trevino to determine whether petitioner's conviction for failure to register as a sex offender, under Wisconsin Statute 301.45(2)(a), was a crime of moral turpitude). NOTE: The court rejected the application of Matter of Tobar-Lobo, 24 I. & N. Dec. 143 (2007) (willful failure to register as a sex offender is a CMT) because (1) the Wisconsin statute does not require willfulness; and (2) Matter of Tobar-Lobo applied the categorical analysis, which the court found was no longer applicable in light of Matter of Silva-Trevino.

Eighth Circuit

CATEGORICAL ANALYSIS " SILVA-TREVINO
Villatoro v. Holder, ___ F.3d ___, 2014 WL 3704037 (8th Cir. Jul. 28, 2014) (court assumed Eighth Circuit had intra-circuit split concerning whether to reject Matter of Silva Trevino, 24 I. & N. Dec. 687 (AG Nov. 7, 2008), or to defer to it), compare Bobadilla v. Holder, 679 F.3d 1052 (8th Cir. May 29, 2012) (deferring to Matter of Silva Trevino, with Guardado"Garcia v. Holder, 615 F.3d 900, 902 (8th Cir. 2010) (following prior Eighth Circuit law).

CRIMES OF MORAL TURPITUDE " SILVA TREVINO
Bobadilla v. Holder, 679 F.3d 1052 (8th Cir. May 29, 2012) (finding full analysis of Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008), including the factual analysis, to be a reasonable interpretation, and therefore due Chevron deference).

CATEGORICAL ANALYSIS - SILVA-TREVINO REJECTED
Guardado-Garcia v. Holder, 615 F.3d 900 (8th Cir. Aug. 4, 2010) ("We are bound by our circuit's precedent, and to the extent Silva-Trevino is inconsistent, we adhere to circuit law. See Jean-Louis v. Att'y Gen., 582 F.3d 462, 470-73 (3d Cir.2009) (concluding that "deference is not owed to Silva-Trevino's novel approach").").

Ninth Circuit

IMMIGRANT LEGAL RESOURCE CENTER " PRACTICE ADVISORY -- PRACTICE AFTER MONCRIEFFE AND MOTTA
The Practice Advisory "UPDATE: Using the California Chart and Notes After Moncrieffe v. Holder and Olivas-Motta v. Holder" provides a brief overview of the holdings in the Supreme Court Moncrieffe decision and the Ninth Circuit Olivas-Motta decision. It also sets out a preliminary update on some Calif. offenses in the Calif. Notes & Chart. The 2013 version of the Calif. Notes and Chart is available for download at www.ilrc.org/crimes. To download this new advisory go to: http://www.ilrc.org/resources/moncrieffe-and-olivas-motta-fourteen-crimimm-defenses-in-the-ninth-circuit and click on "Update for Criminal Defenders: Using the Calif. Chart & Notes after Moncrieffe and Olivas-Motta."

CONVICTION " NATURE OF CONVICTION " CATEGORICAL ANALYSIS " RULES ARE THE SAME IN BOTH CRIMINAL AND IMMIGRATION CONTEXTS
Young v. Holder, 697 F.3d 976, *982 (9th Cir. Sept. 17, 2012) (en banc) (In both criminal and immigration contexts, we often must inquire whether an individual's prior state conviction constitutes a conviction for a generic federal crime. See, e.g., Gonzales v. Duenas"Alvarez, 549 U.S. 183, 185"86, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007) (applying, in the immigration context, the approach set forth in Taylor v. United States, 495 U.S. 575, 599"600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), in the criminal sentencing context); United States v. Aguila"Montes de Oca, 655 F.3d 915, 922 (9th Cir.2011) (en banc) (per curiam) (Bybee, J., opinion) (noting that we have extended that Taylor/Shepard framework to a variety of contexts, including immigration). The categorical and modified categorical frameworks, first outlined by the Supreme Court in [ Taylor ] establish the rules by which the government may use prior state convictions to enhance certain federal sentences and to remove certain aliens. Aguila"Montes de Oca, 655 F.3d at 917.).

CONVICTION " NATURE OF CONVICTION " MODIFIED CATEGORICAL APPROACH " FEDERAL LAW PRINCIPLES DETERMINE THE EFFECT OF A GUILTY PLEA
Young v. Holder, 697 F.3d 976, *985 (9th Cir. Sept. 17, 2012) (en banc) (We hold that federal law principles determine the effect of a guilty plea under the modified categorical approach.).

CONVICTION " NATURE OF CONVICTION " CATEGORICAL ANALYSIS " MODIFIED CATEGORICAL ANALYSIS " LIMITATIONS
Aguilar-Turcios v. Holder, 691F.3d 1025 (9th Cir. Aug. 15, 2012) (military conviction of violating UCMJ Article 92, which prohibits violat[ing] or fail[ing] to obey any lawful general order or regulation, see 10 U.S.C. 892(1), did not amount to a violation of 18 U.S.C. 2252(a)(2) and (a)(4), under the modified categorical approach, because the facts on which the conviction necessarily rested do not satisfy the elements of either 18 U.S.C. 2252(a)(2) or (a)(4), and therefore do not constitute deportable child pornography aggravated felony convictions under INA 101(a)(43)(I), 8 U.S.C. 1101(a)(43)(I)).

CATEGORICAL ANALYSIS " SCOTUS REVIEW OF AGUILA-MONTES DE OCA
United States v. Descamps, 466 Fed. Appx. 563 (9th Cir. 2012) (Supreme Court grant of certiorari is limited to the question whether, in a case under the Armed Career Criminal Act, when a state crime does not require an element of the federal crime of burglary, the federal court may find the existence of that element by examining the record of the state proceedings under the "modified categorical approach.). The issue presented is "Whether the Ninth Circuit's ruling in United States v. Aguila-Montes De Oca, 655 F.3d 915 (9th Cir.2011) (en banc) that a state conviction for burglary where the statute is missing an element of the generic crime, may be subject to the modified categorical approach, even though most other Circuit courts of Appeal would not allow it."

CRIMES OF MORAL TURPITUDE " DEFINITION " SILVA-TREVINO
Saavedra-Figueroa v. Holder, 625 F.3d 621, 626 & n.4 (9th Cir. Nov. 5, 2010) (Ninth Circuit left open the question whether Matter of Silva-Trevino, 24 I. & N. Dec. 687 (AG 2008), applied retroactively to convictions occurring before it was decided).

CRIMES OF MORAL TURPITUDE - CATEGORICAL ANALYSIS
United States v. Santacruz, 563 F.3d 894 (9th Cir. Apr. 20, 2009) (per curiam) ("this circuit applies the "categorical" and "modified categorical" approaches of Taylor v. United States, 495 U.S. 575, 599-602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), when determining whether a crime involves moral turpitude), following Navarro-Lopez v. Gonzales, 503 F.3d 1062, 1067 (9th Cir. 2007) (en banc).

Other

CONVICTION " NATURE OF CONVICTION " CATEGORICAL ANALYSIS " ALMANZA ARENAS VACATED
Almaza Arenas (overruling Young v. Holder) was vacated. It's going en banc. Many of you may be aware of this already, but if not--here it is. Now arguably, Moncrieffe still trumps Young v. Holder on the burden issue (for affirmative applications for relief), but this makes our advisory world much more challenging when advising undocumented clients. Here is an update sent to criminal defenders in the Ninth Circuit on this case, where the court en banc will consider what is a divisible statute under Descamps, and may consider who has the burden of proving whether a divisible statute is a bar to eligibility for relief. Below the first section, which is instructions for defenders, is a brief analysis of the issues and possible outcomes. Thanks to Kathy Brady. Almanza-Arenas v. Holder, 771 F.3d 1184 (9th Cir. 2014) will be Heard En Banc -- Divisible statutes, Burden of Proof Bottom line for defenders: This case concerns when a statute is divisible. The advice on the matter has not changed. Where possible, the best practice is to make a record of a plea to specific conduct that would avoid an immigration penalty -- even if it appears that the statute is not truly divisible, and regardless of whether the person is fighting deportability or applying for relief. For example, Almanza-Arenas addresses whether Cal Veh Code 10851 (taking a vehicle with intent to "temporarily or permanently" deprive the owner) is a crime involving moral turpitude (CIMT). Taking with permanent intent is a CIMT, taking with temporary intent is not. We ask that whenever possible, the defendant should plead to taking with intent to temporarily deprive the owner. This probably always will be the advice. Even if we get good law, there always is the chance that overworked immigration judges might not have the correct analysis, and this makes it crystal clear. However, in terms of the actual law, depending on how this case goes, the Ninth Circuit might find that either: (a) VC 10851 and statutes like it are not divisible and must be judged solely on the minimum conduct ever prosecuted under the statute. In that case, even a specific plea to permanent taking is not a CIMT, because the minimum conduct is temporary taking; or (b) VC 10851 is divisible. In that case, the question is burden of proof. If the issue is whether a permanent resident is deportable for moral turpitude, the government has the burden of proving that the person in fact was convicted of permanent intent. The question is, what happens if the immigrant is applying for relief, like cancellation. Does the Young rule stand, which would mean that the immigrant must produce a record of conviction that proves temporary intent? Or, as the Almanza-Arenas panel held, did the Supreme Court implicitly overrule Young, so that an inconclusive record of conviction would mean Mr. Almanza-Arenas would be eligible for relief, even if the statute were divisible? You can see why we would like to avoid these questions by having the person specifically plead to temporary intent, where possible. But where that is not possible -- or where that was not done in a prior conviction that we must analyze -- Almanza-Arenas will help determine the rules. Analysis. The Almanza-Arenas review presents an opportunity to clarify the categorical approach. Here is how I understand the basic issues. A great team, including Jayshri Srikantiah of Stanford Law School and Kara Hartzler of the Fed Defenders, is working on the case -- they can correct this summary as needed. The Almanza-Arenas panel decision (Almanza-Arenas v. Holder, 771 F.3d 1184 (9th Cir. 2014)) addressed two questions about divisible statutes and the categorical approach. Question 1: Is vehicle taking, Cal Veh Code 10851, "truly divisible" between alternative elements, under the test set out by the U.S. Supreme Court in 2013 in Descamps and Moncrieffe? (If a criminal statute is truly divisible, an immigration (or federal criminal court) judge may look at the individual's record of a conviction to see which of the statutory offenses the person was convicted of.) Question 2: If a statute is truly divisible for purposes of eligibility for some relief -- here, cancellation of removal -- then who has the burden of proof and document production? Currently under Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en banc), the immigrant (read, the often indigent, detained, and unrepresented immigrant) has the burden of obtaining the record of conviction from the prior criminal case, and that record must prove that he or she was convicted of an offense that does not bar the relief. Earlier, better law had provided that due to the nature of the categorical approach, if an inconclusive record of conviction under a divisible statute is before the immigration judge, the immigrant has met his or her burden of showing eligibility for relief. Almanza-Arenas found that: Q 1: Cal Veh Code 10851 is not truly divisible as a crime involving moral turpitude, because a jury is not required to unanimously agree that the intent was to deprive the vehicle's owner permanently as opposed to temporarily; and Q 2: Even if the statute had been divisible, the BIA was wrong to apply the Young rule because in Moncrieffe the Supreme Court effectively overturned Young. Therefore, where a statute is divisible, a noncitizen meets his or her burden of proving eligibility for relief if an inconclusive record of conviction is before the immigration judge. Now the Ninth Circuit en banc will hear Almanza-Arenas. The bad news is that at this point the panel decision is vacated and the Young burden of proof rule applies. This is bad, but not a surprise -- it was expected that the court en banc would review the question. The ambivalent news is that a likely, although not guaranteed, outcome of the Almanza-Arenas en banc review is that the court will find that Veh Code 10851 is not divisible - yay - and therefore that the Young issue is not before the court - boo. Again, Young only addresses who carries the burden when a statute is divisible. The significant upside of this result would be that it could cement the Ninth Circuit's ruling in cases like Rendon v. Holder, 764 F.3d 1077, 1084-85 (9th Cir. 2014), that divisibility requires jury unanimity on statutory alternatives. There the Ninth Circuit held that under Descamps a statute is not divisible unless (a) the statute literally sets out the different elements, phrased in the alternative ; (b) at least one, but not all, of the alternatives would trigger the removal ground at issue; and (c) (the great requirement) in order for these alternative statutory phrases to be "elements" rather than mere means to commit the offense, there must be law requiring a jury to unanimously decide between the alternatives in order to find the defendant guilty. The sua sponte request for rehearing en banc was rejected in Rendon, but with dissents, including one by Judge Kozinski on the mysterious footnote 2 in Descamps (782 F.3d 466). If the Ninth Circuit en banc were to use Almanza-Arenas to upheld the Rendon jury unanimity interpretation, that would further nail down the victory for our side. The Almanza-Arenas statute, Veh Code 10851, presents a clear example for the court to address. The downside would be that the court en banc well might rule that because the statute is not divisible it should not reach the Young issue, which would leave Young standing until it can be litigated another day. Or possibly the anti-Rendon faction would have enough votes to find that Veh Code 10851 is divisible, in which case it could get to the Young issue. Young is a very harmful decision. Still, a good reading of Descamps/Moncrieffe/Rendon, etc. would mean that fewer and fewer statutes are held divisible, and therefore the amount of cases where Young even comes into play decreases commensurately. For more discussion of these decisions and questions, see ILRC advisory "How to Use the Categorical Approach Now" at http://www.ilrc.org/resources/how-to-use-the-categorical-approach-now ;

CRIMES OF MORAL TURPITUDE - NATURE OF CONVICTION - ARGUMENT AGAINST GOING OUTSIDE THE RECORD OF CONVICTION - SILVA-TREVINO
Immigration counsel can argue that Matter of Silva-Trevino was wrongly decided, because Congress did not intend to permit the decisionmaker to go outside the criminal court record of conviction to determine whether a conviction constitutes a crime involving moral turpitude. INA 237(a)(7) provides that the Attorney General may waive deportability for a crime of domestic violence, under INA 237(a)(2)(E)(i), if the noncitizen establishes that s/he has been battered himself or herself, was not the primary perpetrator of violence in the relationship, and other facts. This statute also provides that the Attorney General "is not limited by the criminal court record," INA 237(a)(7)(A), and may consider any credible evidence in evaluating the waiver. INA 237(a)(7)(B). Congress clearly knew how to provide that the Attorney General could go beyond the record of conviction, since it did so in this domestic violence context. The fact that the INA makes no such provision respecting crimes of moral turpitude suggests Congress did not mean to make crimes of moral turpitude another exception to the record of conviction limitation. If the government was not generally limited to the criminal court record in determining the nature of a conviction for immigration purposes, there would have been no need for Congress to create an exception for battered spouses who themselves have been convicted of a crime of domestic violence.

Thanks to Lee A. O'Connor.

CATEGORICAL ANALYSIS - CRIME OF MORAL TURPITUDE
Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. Nov. 9, 2008) (Moral turpitude is an "extra-element" allowing the courts to examine the underlying facts of the conviction in order to made a moral turpitude determination).

In short, the Attorney General has abandoned the categorical analysis in favor of a fact-based examination, rejecting Taylor, Shepard, and all prior categorical analysis case law in the CMT context. There is no longer any limit to the statute of conviction or minimum conduct. The IJ can look directly to the underlying facts whenever s/he feels it necessary to do so.

The categorical analysis survives only as an "evidentiary hierarchy," to ease the administrative burden of the immigration courts and the DHS. The new rule can be phrased as, "if at first its not a CMT, try, try again."

Step 1 (from Duenas-Alvarez, 549 U.S. 183 (2007)): Look at the statute, if the statute is categorically a CMT the conviction is a CMT. The Attorney General applies Duenas language regarding "reasonable probability of prosecution," as a requirement that the noncitizen prove that the statute of conviction is not categorically a CMT by pointing to the facts of his own case or a prior published decision. If there isnt a case out that punishes a non-CMT under the statute, then the conviction is categorically a CMT.

Step 2 (from Conteh v. Gonzales, 461 F.3d 45 (1st Cir.2006)): "Modified categorical approach" no longer means looking to determine the elements of conviction in case of a divisible statute. The term now means looking to any facts in the record of conviction to determine whether the offense was in fact a CMT.

Step 3 (from Ali v. Mukasey, 521 F.3d 737 (7th Cir. Apr. 4, 2008)): The Attorney General sees no justification for being limited to the record of conviction. If it cannot be determined that the conviction was a CMT by looking to the facts in the record of conviction, the immigration authorities can look at any and all underlying facts and subsequent testimony if the immigration judge decides it is necessary to do so.

While the noncitizen cannot dispute any facts found by the judge/jury or elements necessary for conviction, the DHS not limited by the elements of conviction in any way.

The minimum conduct punishable under the Texas Statute at issue in Silva-Trevino included where a 20 year old consensually feeling the breast of a girl 1-day shy of 18 years old, though clothing, while (mistakenly) believing she was over 18 years old. The conviction record reflected only the basic language of the statute. Nevertheless, the Attorney General remanded the case back to the BIA to determine whether the actor, in fact, knew or had reason to believe that the victim was under the age of 18.

The Attorney General was explicit in stating his view that Brand-X allows this decision to overrule all prior inconsistent case law from the Circuit Courts.

See http://www.bibdaily.com/pdfs/Silva%20Trevino%20Amicus%20Brief.pdf, for amici brief outlining many arguments in opposition to this terrible decision. This decision abruptly changes nearly 100 years of CMT law, and should be attacked.