Under the Immigration and Nationality Act, individuals who have committed what are considered crimes involving moral turpitude are in most circumstances ineligible for permanent residence. Depending on when the crime was committed and the individual’s prior criminal history, it may also make him or her removable. (Please note that certain exceptions apply to these general rules and some individuals may be eligible for a waiver). A crime involving moral turpitude refers generally to conduct that is morally reprehensible and intrinsically wrong.
Recently the US Court of Appeals for the Fourth Circuit, which includes VA, MD and DC, had the opportunity to review the way the Board of Immigration Appeals analyzes whether a state criminal infraction constitutes a crime involving moral turpitude. In Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), the Attorney General implored the BIA and Immigration Courts to implement a three step analysis to decide whether the state criminal conviction amounts to a crime involving moral turpitude. The Attorney General added an additional step to the two-part test that had previously been in place. In determining whether a conviction under a state statute equates to crime involving moral turpitude under the INA, the Immigration Judge will first evaluate the statue to determine whether it categorically includes or excludes crimes involving moral turpitude. If this is the case than the inquiry ends there. If however the statute is divisible and contains some actions that constitute a crime involving moral turpitude and some that do not, the Immigration Judge looks to the documents that constitute the record of conviction (in a guilty plea this includes the charging document, the plea agreement, the plea colloquy, and any explicit findings of fact made by the trial judge) to see if it can be determined whether the individual was convicted for the portion that is a crime involving moral turpitude or not. If this cannot be determined than the Immigration Judge cannot find that the individual has committed an crime involving moral turpitude.
In Matter of Silva-Trevino, supra, the Attorney General extended the inquiry out one more step in those cases where a review of the record is vague as to which portion of the statute the respondent was convicted. In these cases, the Attorney General authorized the Immigration Judges to consider evidence beyond the record of conviction to the extent they deem it necessary and appropriate.
In a recent case, Prudencio v. Holder, 2012 U.S. App. LEXIS 1693, the Fourth Circuit rejected the approach set forth by the Attorney General in Silva-Trevino, supra. In so doing, the Fourth Circuit emphasized that the proper analysis includes only the first two steps and review by the Immigration Judge of matters outside of the record of conviction is improper. The Court noted that often the documents considered by the Immigration Judge as part of the third-step in Silva-Trevino, include police reports, pre-sentencing reports and others that are based on hearsay and contain facts not proven beyond a reasonable doubt or even considered by the Immigration Judge and/or respondent / defendant. Prudencio v. Holder puts the emphasis back on the official documents of record as well as the specific statutory elements for immigration officials determining whether a state conviction is a crime involving moral turpitude and avoids a re-trying of the facts of the underlying criminal hearing.