On April 10, 2015, then-Attorney General Eric Holder issued a legal decision that, while only five pages, will have immense consequences for noncitizens facing deportation as a result of prior criminal convictions. The opinion reintroduces stability and clarity to immigration proceedings by vacating (setting aside) an earlier opinion by former Attorney General Michael Mukasey, who had broken with nearly a century’s worth of precedent by drastically expanding immigration adjudicators’ ability to delve into the facts underlying noncitizens’ convictions.
Under the federal Immigration and Nationality Act (INA), many types of criminal convictions can lead to adverse immigration consequences for noncitizens living in or trying to enter the United States. Noncitizens may be deemed “inadmissible” if they have been convicted of certain money laundering or controlled substance offenses, crimes involving moral turpitude, or multiple non-political crimes; they may be deemed “deportable” if they have been convicted of certain firearms, domestic violence, or controlled substance offenses, or two or more crimes involving moral turpitude; and they may be ineligible for various discretionary forms of relief or naturalization if they have certain convictions in their history. Because many noncitizens are convicted under state, rather than federal, law, immigration adjudicators must determine whether a state criminal conviction leads to adverse immigration consequences for the noncitizen.
To do this, U.S. courts have long used the “categorical approach.” Under this approach, adjudicators focus solely on the elements required to convict someone under the state law. If the state statute only criminalizes the same sort of conduct contemplated by the federal immigration law, then there is a categorical “match,” and the criminal conviction will trigger immigration consequences. If, however, the state statute also punishes conduct that falls outside that envisioned under the federal immigration law, there is no “match,” and no immigration consequences may result. Notably, the categorical approach sets aside what acts the noncitizen actually committed; rather, the categorical approach mandates a comparative analysis of the statutes at issue, regardless of what the noncitizen actually did.
If no determination can be made under this categorical approach, most courts continue to a second step, termed the “modified categorical approach.” In this analysis, the court may look to documents in the noncitizen’s record of conviction, such as the charging documents, plea agreements, jury instructions, and verdict. But even under this modified approach, the court still may not consider the underlying facts of the case outside of what is included in the record of conviction.
Despite the fact that some form of the categorical approach had been in use for almost 100 years, this analytical tool was dealt a crushing blow in 2008. In one of his last acts in office, former Attorney General Michael Mukasey issued an opinion in a case known as Matter of Silva-Trevino. The case turned on whether long-time lawful permanent resident Cristoval Silva-Trevino’s conviction for “indecency with a child” under Texas law constituted a “crime involving moral turpitude[*]” that would render him inadmissible. Though the Board of Immigration Appeals (BIA) had used the categorical approach to vacate the Immigration Judge’s order of removal, Mukasey’s opinion overruled that decision and added a previously unheard of third step to the analysis: if the categorical approach and modified categorical approach did not lead to a conclusive determination, Mukasey concluded that the immigration adjudicator should “consider any additional evidence” beyond the record of conviction that s/he deemed “necessary or appropriate.” In other words, for the first time ever, Immigration Judges and the BIA could and should look at the underlying facts of the case and the acts that the noncitizen had actually committed when determining whether s/he was inadmissible for a crime involving moral turpitude.
The response from immigration and criminal advocates was immediate. A vast coalition of organizations submitted an amicus brief to Mukasey, as well as several letters to new Attorney General Eric Holder shortly after he took office in early 2009. These advocates first argued against the fundamental unfairness and lack of transparency involved in Mukasey’s decision, as Silva-Trevino’s own lawyer had not been notified about the opinion beforehand and had not been given the opportunity to submit arguments to the Attorney General either before or after the decision was issued.
But more fundamentally, immigration practitioners warned that abandoning the categorical approach would require “re-trying” criminal cases in immigration courts, where many of the constitutional protections available to defendants in criminal court do not apply, and simultaneously overburdening already strapped immigration courts in the process. They worried that evidence or witnesses used in the original criminal trials might no longer be available to noncitizens in immigration proceedings many months or years after their criminal cases were concluded, and asserted that Silva-Trevino’s drastic departure from long-standing precedent would impair criminal defense attorneys from giving their noncitizen clients reliable advice regarding plea deals now that evidence beyond their formal conviction could be considered in the immigration context.
Over the next several years, the federal Third, Fourth, Ninth, and Eleventh Circuit Courts of Appeals all rejected Silva-Trevino and upheld the categorical approach in cases concerning crimes involving moral turpitude. The Seventh and Eighth Circuit Courts of Appeals upheld the Silva-Trevino factual analysis approach, while other circuits did not address the issue directly, leading to a “circuit split.” Ironically, despite Mukasey’s ostensible attempt to “establish a uniform framework” for courts across the country to use, his decision in Silva-Trevino actually led to less uniformity, as Immigration Judges and the BIA thus had to apply different standards to different cases depending on which circuit the noncitizen’s case arose in.
At the same time, the U.S. Supreme Court issued decisions outside of the “crime involving moral turpitude” context that nonetheless affirmed its support for the categorical approach in general: In Moncrieffe v. Holder, the Supreme Court upheld the use of the categorical approach in an immigration case involving the “aggravated felony” ground of deportability, and in Descamps v. U.S., the Court mandated the categorical approach in a federal sentencing (non-immigration) case. The BIA itself appeared to retreat a bit from Silva-Trevino when it later applied Moncrieffe and Descamps and utilized the categorical approach in analyzing a conviction under the aggravated felony ground of deportability in Matter of Chairez-Castrejon. In short, it seemed that Silva-Trevino might not have completely killed the categorical approach after all.
And later, in January 2014, the Fifth Circuit Court of Appeals rejected Mukasey’s fact-specific approach in Silva-Trevino’s own case. Shortly thereafter, the American Bar Association and other organizations wrote to Attorney General Holder yet again, urging him once more to withdraw Mukasey’s opinion in Silva-Trevino.
Finally, just before leaving office in April 2015, Holder issued a formal order vacating Mukasey’s Silva-Trevino opinion in full. Citing the numerous Circuit Court and Supreme Court decisions that had either expressly overruled Silva-Trevino or had at least upheld the categorical approach in other contexts, Holder observed the lack of uniformity in this area of the law and noted that the Supreme Court had “cast doubt on the continued validity of the third [fact-specific] step of the framework set out by Attorney General Mukasey’s opinion.” He left it to the BIA to determine, in this and other future cases, “[w]hen, and to what extent, adjudicators may use a modified categorical approach and consider a record of conviction in determining whether” a noncitizen’s conviction qualifies as a crime involving moral turpitude and thus triggers immigration consequences.
Advocates were understandably overjoyed that the goal they had been working toward for years had finally been realized. Though the landmark decision is still new, at least one Immigration Judge in the Omaha, Nebraska, immigration court has already stated that he will apply the categorical and modified categorical approaches under Supreme Court, Eighth Circuit, and BIA precedent until the BIA provides further guidance, and has terminated proceedings in at least one case.
While advocates and noncitizens with criminal convictions will need to await clarifications from the BIA in the future, Holder’s recent opinion makes clear that adjudicators should not look beyond the record of conviction to the underlying facts of a noncitizen’s prior criminal offense. This return to the categorical and modified categorical approach is a victory for immigrants’ rights advocates and criminal defenders looking for stability and uniformity in how to advise their clients regarding potential immigration consequences of their criminal convictions.
[*] While the Immigration and Nationality Act (INA) does not define the term “moral turpitude,” courts have largely agreed that it “refers generally to conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one’s fellow man or society in general.”