SILVA-TREVINO
24 I. & N. Dec. 687
| BIA | 2015Background
- Respondent Silva-Trevino pleaded no contest (Oct. 6, 2004) to Texas Penal Code § 21.11(a)(1) (indecency with a child — intentional sexual contact with a person <17) and received deferred disposition/community supervision.
- DHS initiated removal as an aggravated felony and argued respondent was inadmissible because his conviction was for a "crime involving moral turpitude" (CIMT), barring adjustment of status.
- The IJ found the offense analogous to statutory rape and a CIMT; the BIA reversed, reasoning § 21.11(a)(1) criminalizes some less-culpable conduct (and lacks a mistake-of-age element) so the statute as a whole is not categorically a CIMT.
- AG review vacated the BIA decision and remanded, announcing a uniform framework for adjudicating whether prior convictions are CIMTs.
- The AG: (1) adopts a "realistic probability" categorical test (from Duenas-Alvarez); (2) when categorical analysis is inconclusive, permits a modified categorical inquiry into the record of conviction; and (3) if the record is inconclusive, allows consideration of additional evidence as necessary to determine whether the particular conviction involved moral turpitude.
- Applying the framework, the AG held sexual contact with a child that the defendant knew or should have known involves moral turpitude, but concluded § 21.11(a)(1) has been applied in Texas to some cases lacking that scienter (Johnson v. State), so categorical treatment is inappropriate and further fact-specific inquiry is required.
Issues
| Issue | Plaintiff's Argument (Silva-Trevino) | Defendant's Argument (DHS/Board) | Held |
|---|---|---|---|
| Proper methodology to decide whether a prior conviction is a CIMT | Use categorical inquiry limited by circuit precedent; if statute allows some non-turpitudinous convictions, statute not a CIMT | Use categorical approach; apply circuit-specific tests; limit review to record of conviction | AG adopts a uniform three-step framework: (1) realistic-probability categorical test; (2) modified categorical inquiry to record of conviction; (3) if still inconclusive, limited beyond-record evidence as appropriate |
| Whether Texas § 21.11(a)(1) is categorically a CIMT | § 21.11(a)(1) does not require knowledge of victim’s age; could criminalize non-turpitudinous contact (so not categorical CIMT) | § 21.11(a)(1) analogous to statutory rape and should be treated as a CIMT | Not categorical: AG finds realistic-probability test shows § 21.11(a)(1) has been applied to cases lacking knowledge of age (e.g., Johnson), so categorical CIMT treatment is not warranted |
| Scope of evidence in modified inquiry when categorical test fails | Permit only the record of conviction documents (indictment, plea, judgment) | BIA/DHS previously favored limiting to record of conviction to avoid relitigation and burdens | AG permits initial look at record of conviction; if inconclusive, adjudicator may consider additional relevant evidence (but not relitigation of conviction) to determine whether the particular conviction involved moral turpitude |
| Definition of "crime involving moral turpitude" — scienter requirement | (Implicit) statute may create CIMT without explicit scienter element | (Some courts/BIA) varied approaches; some focus on severity or common case | A CIMT requires reprehensible conduct plus some degree of scienter (specific intent, willfulness, deliberateness, or recklessness). Intent/knowledge that victim is a child is critical in child-sex cases |
Key Cases Cited
- Gonzales v. Duenas-Alvarez, 549 U.S. 183 (Sup. Ct.) (adopts the "realistic probability, not a theoretical possibility" test for categorical inquiries)
- Taylor v. United States, 495 U.S. 575 (Sup. Ct.) (limiting inquiry into prior convictions for federal sentencing — discussed and distinguished)
- Shepard v. United States, 544 U.S. 13 (Sup. Ct.) (limits evidence usable to identify prior conviction’s elements in sentencing — discussed and distinguished)
- Jordan v. DeGeorge, 341 U.S. 223 (Sup. Ct.) (historical treatment of moral turpitude; fraud as CIMT)
- Michel v. INS, 206 F.3d 253 (2d Cir.) (criticized as raising administrative-burden objection to beyond-record inquiry)
- Partyka v. Attorney General, 417 F.3d 408 (3d Cir.) (discusses "least culpable conduct" approach to categorical CIMT analysis)
- Nicanor-Romero v. Mukasey, 523 F.3d 992 (9th Cir.) (discusses realistic-probability approach and limits on evidentiary scope)
- Quintero-Salazar v. Keisler, 506 F.3d 688 (9th Cir.) (application of moral-turpitude analysis to certain sex-offense statutes)