Attorney General Holder Vacates Matter of Silva-Trevino in its Entirety | CLINIC

Attorney General Holder Vacates Matter of Silva-Trevino in its Entirety

By Brad Jenkins

On April 10, 2015, Attorney General Eric Holder issued an opinion and order that vacated his predecessor’s 2008 decision in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008) vacated 26 I&N Dec. 550 (A.G. 2015).  The original opinion in Silva-Trevino announced a new framework for determining whether a conviction was for a crime involving moral turpitude.  The framework was controversial because, contrary to longstanding practice, it directed adjudicators to engage in a fact-based inquiry if the traditional approaches failed to yield a definitive answer.  Over the next six years, five different United States courts of appeals would reverse Matter of Silva-Trevino and order immigration adjudicators to employ the traditional analysis regarding whether a conviction was for a crime involving moral turpitude.  The resulting patchwork of rules throughout the country motivated the Attorney General to discard the Silva-Trevino framework in order to allow the Board of Immigration Appeals to establish a truly uniform national standard for this issue.

The Attorney General left undisturbed, for now, the substantive definition of a crime involving moral turpitude articulated in Matter of Silva-Trevino, but also in subsequent BIA cases: an offense involves moral turpitude if it entails “reprehensible conduct and some form of scienter.” 24 I&N Dec. at 706 n.5; see also Matter of Ortega-Lopez, 26 I&N Dec. 99 (BIA 2013).

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