By Susan Schreiber
Three recent circuit court decisions provide some good news for immigrants related to immigration consequences of criminal offenses. These decisions, summarized below, address (a) analyzing when an offense is a crime of moral turpitude; (b) LPR eligibility for an INA § 212(h) waiver; and (c) conviction finality.
In 2008, the U.S. Attorney General issued a BIA precedent decision, Matter of Silva Trevino, 24 I&N Dec 687 (BIA 2008), which radically changed the analysis used to determine when an offense is considered a crime of moral turpitude. Prior to the AG's decision, moral turpitude was analyzed based on the crime as described by the statute , with consideration of the record of conviction permitted where the statute was deemed to be "divisible," i.e. including multiple sections where some but not all sections described turpitudinous conduct. The AG Silva Trevino decision departed from that analysis by allowing for the consideration of extrinsic evidence – evidence outside the record of conviction – to determine if an offense involves moral turpitude. Since then, the AGs analysis has been rejected in the 3rd, 4th, 9th, and 11th circuits, with the 7th and 8th circuits deferring to the AG's approach. Now the 5th Circuit, hearing Mr. Silva-Trevino's case, has vacated the AG decision and rejected the analysis allowing for the consideration of extrinsic evidence. This is important news in the “crimm-imm” field because the Silva-Trevino AG decision allowed for a dramatic expansion of crime-based inadmissibility and deportability based on crimes of moral turpitude. It is likely that we will see more developments on this issue, perhaps including a new BIA precedent decision.
INA § 212(h), the waiver available for certain crime-based inadmissibility grounds, was amended in 1996 to limit LPR eligibility for this waiver. Under the terms of the statute, no waiver may be granted to an alien "previously admitted to the U.S." as an LPR if that individual was either convicted of an aggravated felony or does not have seven years of continuous lawful residence in the U.S. before being placed in removal proceedings. Although this statutory language may initially seem unambiguous, advocates have argued that the limitation, as written, applies only to those who entered as LPRs at the border, and not to those LPRs who adjusted status after arrival in the United States.
What does the BIA say? In two different decisions, two years apart, the BIA has upheld the applicability of the 212(h) LPR bar to all LPRs, regardless of status at entry. Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010); Matter of E.W. Rodriguez, 25 I&N 784 (BIA 2012). The BIA's analysis of the statute, however, was not persuasive to the Ninth Circuit, which joined the 3rd, 4th, 5th, 7th and 11th circuits in finding that the 212(h) bar does not apply to an LPR who adjusted status in the U.S. It remains to be seen whether this significant rejection of the BIA's analysis of 212(h) may persuade the Board to revisit this issue.
When is a conviction final for immigration purposes? Can a noncitizen be charged with inadmissibility or deportability based on a conviction that is on direct appeal? Since the enactment of IIRAIRA in 1996 and the inclusion of a definition of conviction in the INA at section 101(a)(48)(A), courts in the 1st, 2nd, 5th, 7th, 9th and 10th circuits, have determined that the statutory definition eliminated the finality requirement. In the recent Orabi decision, however, the court disagreed with sister circuits, holding that the principle that a conviction does not attain sufficient finality for immigration purposes until a direct appeal has been waived or exhausted is "alive and well" in the Third Circuit. This is good news for those in Delaware, New Jersey, Pennsylvania and the U.S. Virgin Islands, the districts covered by the Third Circuit.