The End of an Error? 11th Circuit Joins 3rd and 8th Circuits In Overturning BIA’s Silva-Trevino Decision

The Attorney General's 2008 decision in Matter of Silva-Trevino, 24 I.&N. Dec. 687 (A.G. 2008), which undid a century of legal doctrine reviewing crimes under the categorical approach, has made criminal immigration defense a circus of relitigating old convictions before of the immigration courts. I've previously offered my own insights on tactics to defend immigrants charged with convictions for crimes involving moral turpitude. Fortunately, the circuit courts of appeal are slowly but inexorably recognizing the folly of Silva-Trevino’s uncategorical categorical analysis, and on October 12, 2011, the 11^th Circuit in Sanchez-Fajardo joined the 3^rdCircuit and 8^thCircuit in rejecting the Board’s three-step framework.

In Sanchez-Fajardo, Petitioner, a native and citizen of Cuba and returning LPR, was found inadmissible by the Immigration Judge and BIA under INA § 212(a)(2)(A)(i)(I) for having been convicted of a CIMT, in connection with a false imprisonment conviction under Florida Statutes § 787.02. As the record of conviction was ambiguous as to the turpitudinous nature of the offense, the IJ went beyond the record of conviction to determine removability. Under the Florida statute, a Defendant could be found liable for false imprisonment even where confinement was temporary and non-violent, and resort to the record of conviction failed to clarify how confinement was accomplished. The Immigration Judge however looked outside of the record of conviction as directed by Silva-Trevino Step III, and stringing together facts found from Sanchez-Fajardo’s concurrent convictions for misdemeanor battery and assault, concluded that the false imprisonment conviction constituted a crime involving moral turpitude. The Board affirmed the IJ’s analysis. The 8^th Circuit however rejected this approach, holding that analysis of an offense must begin and end with the conviction before the criminal court, and not with a separate inquiry into the Defendant’s conduct. Concluding that the immigration laws were unambiguous on the mandatory nature of the categorical and modified categorical approaches, the Court in Sanchez-Fajardo forbids inquiry into conduct beyond that described categorically in the statutory offense, or by the record of conviction where the criminal statute is overbroad.

In the 9^th Circuit, the Court of Appeals has yet to explicitly rule on the validity of the Silva-Trevino Three-Step Analysis, only skirting the issue recently in an anyway-you-slice-it decision in Hernandez-Cruz v. Holder. Bolstered by these three circuit court decisions however we can only hope that the 9^th Circuit can soon find the right case and finally put an end to Silva-Trevino error.