On Oct. 12, 2016, the Board of Immigration Appeals published a precedential opinion in the long-running saga of Matter of Silva-Trevino. Two prior attorneys general, as well as many courts of appeal, had previously weighed in on the issues presented.

The history of Silva-Trevino spans back to 2008, when Attorney General Michael Mukasey published a decision in which he offered a new framework for determining whether a conviction is for a crime involving moral turpitude. Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008) (“Silva-Trevino I”). The controversial feature of this framework was that it permitted immigration judges to consider factual evidence in determining whether a conviction was for a crime involving moral turpitude if the traditional “categorical” approach did not supply a definitive answer. Over the next seven years, several courts of appeals rejected this approach, including the Fifth Circuit in Mr. Silva-Trevino’s own case.  See Silva-Trevino v. Holder, 742 F.3d 197 (5th Cir. 2014); Olivas-Motta v. Holder, 746 F.3d 907 (9th Cir. 2013); Prudencio v. Holder, 669 F.3d 472 (4th Cir. 2012); Fajardo v. U.S. Att’y Gen., 659 F.3d 1303 (11th Cir. 2011); Jean-Louis v. Att’y Gen. of U.S., 582 F.3d 462 (3d Cir. 2009). 

In 2015, Attorney General Holder, recognizing the depth of this split of authority, vacated his predecessor’s decision and remanded the case to the BIA to articulate a framework for analyzing whether a crime involves moral turpitude. Matter of Silva-Trevino, 26 I&N Dec. 550 (A.G. 2015) (“Silva-Trevino II”). The Board’s decision is, therefore, the third precedent decision from the Department of Justice in this case. Matter of Silva-Trevino, 26 I&N Dec. 826 (BIA 2016) (“Silva-Trevino III”).

Silva-Trevino III sets out several important principles guiding any moral turpitude analysis.

First, like most courts of appeals and Attorney General Holder, Silva-Trevino III discards any fact-based inquiry and reaffirms that the categorical and modified categorical approaches of analyzing criminal statutes provide the framework for determining whether a conviction is for a crime involving moral turpitude.

Second, the Board generally adheres to its emerging strict reading of the “realistic probability” test for determining the scope of a criminal statute vis-à-vis the concept of moral turpitude. Id. at 832; cf. Matter of Mendoza-Osorio, 26 I&N Dec. 703 (BIA 2016) (applying the realistic probability test particularly strictly).  However, advocates should continue to argue that the Board’s interpretation of the realistic probability test is incorrect both generally and as applied to crimes involving moral turpitude.  Indeed, in Silva-Trevino III, the Board held that it must follow more generous precedents in various circuits and conceded that its interpretation merits no deference from the courts of appeals. Id. at 832-33; see also Jean-Louis v. Att’y Gen. of U.S., 582 F.3d 462 (3d Cir. 2009); Gomez-Perez v. Lynch, 829 F.3d 323 (5th Cir. 2016).

Third, the issue of whether Mr. Silva-Trevino’s conviction was for a crime involving moral turpitude arose not in the context of deportability, but in determining his eligibility for adjustment of status.  Like the Board’s recent comments in Matter of Chairez, 26 I&N Dec. 819, 825 & n.7 (BIA 2016), this case stands for the proposition that when a criminal statute punishes both conduct which triggers inadmissibility and conduct which does not, a conviction under the statute will not bar an application for relief, at least where the statute is not divisible. Silva-Trevino III, 26 I&N Dec. at 836.

Finally, because the Board held Mr. Silva-Trevino’s crime to not involve moral turpitude, it considered DHS’s argument that a heightened discretionary standard used in waiver cases must be used where an offense is “violent or dangerous.”  The Board rejected this argument, holding instead that general discretionary standards, not a heightened “extraordinary circumstances” standard were appropriate. Id. at 836-837; cf. Matter of C-V-T-, 22 I&N Dec. 7 (BIA 1998