The Attorney General's recent decision in Matter of Silva-Trevino, 24 I.&N. Dec. 687 (A.G. 2008), undoing a century of legal doctrine in analyzing crimes under the categorical approach, has made criminal immigration defense more challenging than ever. I've recently had my own personal experience working under this new order, and can offer a few preliminary insights.
By way of background, the AG in Matter of Silva-Trevino, set out a three-part analysis for immigration judges and DHS officers to determine whether a non-citizens criminal offense constitutes a crime involving moral turpitude (CMT). In short,
to determine whether an alien's prior conviction triggers application of the Act's moral turpitude provisions, adjudicators should: (1) look first to the statute of conviction under the categorical inquiry set forth in this opinion and recently applied by the Supreme Court in Duenas-Alvarez; (2) if the categorical inquiry does not resolve the question, look to the alien's record of conviction, including documents such as the indictment, the judgment of conviction, jury instructions, a signed guilty plea, and the plea transcript; and (3) if the record of conviction does not resolve the inquiry, consider any additional evidence the adjudicator determines is necessary or appropriate to resolve accurately the moral turpitude question.
Id. at 704.
The first two steps track approximate the Taylor and Shepard analyses traditionally applied under the categorical and modified categorical approaches and favored by the U.S. Supreme Court recently in Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2006). See also Taylor v. United States, 495 U.S. 575 (1990); Shepard v. United States, 125 S.Ct. 1254 (2005). The reasons for confining the inquiry are based both on fair play and judicial economy: inquiring beyond the record of conviction and imposing immigration liability for acts not pleaded to or proven beyond a reasonable doubt in criminal court would unfairly penalize non-citizens facing deportation, and would bog down administrative proceedings with criminal mini-trials to determine the character of the alleged offense. Also, numerous criminal defendants fashioned their plea bargains and took guilty pleas justifiably reliant upon an understanding that immigration courts would not look beyond the confines of the record of conviction in finding a crime involving moral turpitude.
Unsatisfied with this wisdom, Attorney General Michael Mukasey conjured the third prong, thereby discarding, for all practical purposes, the prudential limitations of the categorical approach. AG Mukasey dismissed these broadly accepted concerns over fairness and economy, leaving it to the discretion of immigration judges and DHS officers to determine how far is far enough in retrying the alleged criminal offense.
The immigration bar, notably the American Immigration Law Foundation and the National Immigration Project of the National Lawyers Guild, has responded forcefully to the Attorney General's decision. Many immigration defense attorneys pondered a practice landscape replaced by a battlefield of trench warfare, where ICE attorneys call to the stand police officers, alleged victims, and witnesses repeating hearsay statements to impugn our clients, and where defense counsel calls competing witnesses to testify.
What few counted on however is the unsympathetic response the AG's decision might receive from the immigration bench, a response that might lead to something of a repudiation, in the practical sense, of Silva-Trevino. Immigration Judges already face a crushing workload, and the backlog on individual case hearings reach out eighteen months in some courtrooms. Under the circumstances, it's only appropriate that there might be push-back on any added burden on IJ time without any provision of additional resources. So, faced by the prospect of these third-prong hearings, some judges are fighting back.
In the San Francisco Immigration Court, ICE attorneys are abusing the privilege afforded by the third prong, submitting generic requests for hearing on the CMT charge, even where they have failed under their burden of production to proffer any evidence beyond an inadequate record of conviction, evidence such as a police report or witness affidavit, to justify a decision by the court to set aside a day of hearings. Demonstrating toughness and independence however, a judge In one of our cases flatly rejected ICE's request, allowing the Government just 60 days to come up with some evidence in support of further inquiry.
From the gist of the court's order, it was easy to discern the judge's deep frustration with the burden of Silva-Trevino and ICE's scheme to mine for evidence on the day of trial. What's clear from the incident is that immigration judges just might be our unrecruited allies against the third-prong. In motions to dismiss CMT charges under Silva-Trevino, defense counsel should be making common cause with the judges against ICE requests to hold fishing expedition hearings where either no evidence beyond the record of conviction or unfair, inadmissible evidence in support of prong three has yet been submitted. Recall that Silva-Trevino endows Immigration Judges wide discretion to determine just what evidence is "necessary or appropriate" to ascertain whether an offense constitutes a crime involving moral turpitude. It pays to remind the court of this authority and not be browbeat by ICE into scheduling a third-prong hearing in arguing against a time wasting witness examination.
Just as importantly in fending off these hearings, defense counsel should early on try to defeat the expectation that ICE can compel the respondent to testify where the burden of production, as a constitutional due process matter, rests with the Government to establish all elements of removability by clear, convincing an unequivocal evidence. See Woodby v. INS, 385 U.S. 276 (1966) (clear, convincing and unequivocal standard required as a matter of due process); cf. INA § 240(c)(3) (clear and convincing standard); Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2006); Matter of Tang, 13 I&N Dec. 691 (BIA 1971) (non-citizen cannot be called to testify unless Gov't provides some evidence of alienage), U.S. v. Minker, 350 US 179 (1956) (denatz case), Matter of Vivas, 16 I&N Dec. 68 (BIA 1977) (burden of persuasion only shifts to Respondent when Gov't makes prima facie case); Matter of Guevara, 20 I&N Dec. 238 (BIA 1991) (adverse inference by 5th Amendment exercise of silence cannot be sole basis for establishing Gov'ts prima facie case); Chavez v. Gonzales, 192 Fed.Appx. 712, 713 (9th Cir. Jul 27, 2006) (adverse inference from silence appropriate only where other evidence of alienage in record). None of these decisions were explicitly overturned by Silva-Trevino, and thus they remain good authority.
I'll keep readers posted on further developments in these cases.
