ATTORNEY GENERAL VACATES MATTER OF SILVA-TREVINO, 24 I & N Dec. 687 (A.G. 2008).
On April 10, 2015, the U.S. Department of Justice, Office of the Attorney General (“Attorney General”) vacated Attorney General Mukasey’s prior opinion in Matter of Silva-Trevino, 24 I & N Dec. 687 (A.G. 2008), which had established a new 3-step framework to determine whether a particular conviction was for a crime involving moral turpitude (CIMT) as that term is defined at INA § 212(a)(2). Noting that the Mukasey opinion had added a 3rd step to the modified categorical analysis to allow Immigration Judges (IJs) and the Board of Immigration Appeals (BIA) to consider any additional evidence “beyond the record” that “is necessary or appropriate to resolve accurately the moral turpitude question”, the Attorney General found that a majority of circuit courts of appeal that have ruled on the issue have rejected Mukasey’s construction of the statute, all ageeing that the phrase “convicted of”, as used in the Act, forecloses any inquiry into evidence outside of the record of conviction.
The Attorney General further held that the Mukasey opinion’s stated goal of establishing a uniform framework for ensuring that the Act’s CIMT provisions are accurately applied had not been met, as the circuits are split, forcing IJs and the BIA to apply different rules in different jurisdictions. Citing to several U.S. Supreme Court cases that cast considerable doubt on the continued validity of Mukasey’s 3rd step, the Attorney General concluded that it is now appropriate to vacate Attorney General Mukasey’s 2008 opinion in its entirety. Matter of Silva-Trevino, 26 I & N Dec. 550 (A.G. 2015).
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