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Criminal Defense Attorneys Can Now Better Determine A Criminal Conviction's Immigration Consequences

On April 10, 2015, then-United States Attorney General Eric Holder executed an order, which precludes immigration judges from considering evidence outside of the record of conviction in order to determine whether a non-citizen was removable on the basis of a conviction for a "crime involving moral turpitude"

8 U.S.C. 1182 entitled "Inadmissible aliens" provides in pertinent part,

"(a)(2)(A)...any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime...is inadmissible."

"Crime involving moral turpitude" does not have a statutory definition, however, in Matter of Danesh, 19 I. & N. 669 (BIA 1988) held that moral turpitude "refers generally to conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one's fellow man or society in general."

Former-Attorney General Michael Mukasey's Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008) opinion held that an immigration judge could consider evidence of the underlying facts outside what is established by the criminal disposition and record of conviction to assess whether the conduct involved moral turpitude.

The Silva-Trevino decision instructed immigration to judges to first apply the categorical approach - assess the inherent nature of the offense and not the individual's conduct. Following this analysis, if the immigration judge cannot determine if the statute's prohibited conduct either always or never involves moral turpitude then the immigration judge was instructed to consult the record of conviction.

In vacating the Silva-Trevino decision, former-Attorney General Holder relied on two Supreme Court cases, Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010) and Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), in which the Court held that courts could not consider uncharged conduct and "convicted of" requires a categorical approach analysis.

In support of his order, then-Attorney General Holder relied on the decisions of five federal circuit courts, the Third, Fourth, Fifth, Ninth, and Eleventh, that rejected the Silva Trevino decision.

Criminal Defense Attorneys can now better assess the immigration consequences of a non-citizen's potential guilty plea and/or criminal conviction and need only to analyze the statute and record of conviction.

If you or someone you care about has questions regarding the immigration consequences of a potential guilty plea and/or criminal conviction, please contact Michael C. Hennenberg to schedule a consultation.

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