Reviewing Attorney General's decision in Matter of Silva-Trevino, the Fifth Circuit joined the Ninth Circuit and three other circuits to reject the new procedure announced in that case whereby an immigration adjudicator can go beyond the record of conviction to evaluate whether a noncitizen is inadmissible for a crime involving moral turpitude.
The Fifth Circuit found the statutory text of INA 212(a)(2)(A)(i) was unambiguous and thus foreclosed the Attorney General's interpretation. The text makes inadmissible an alien "convicted of" or who admits to a crime involving moral turpitude (CIMT). Here, Silva-Trevino had not admitted to a CIMT. Thus, the question was whether evidence outside the record of conviction could be used to establish that he was convicted of such a crime. The court said no, tracking the analysis of the Ninth Circuit's decision in Olivas-Motta v. Holder-.
The only questionable part of the Fifth Circuit's decision in Silva-Trevino and the Ninth Circuit's decision in Olivas-Motta is the reference to INA 240(c)(3)(B), 8 U.S.C. 1229a(c)(3)(B). That section lists the documents can be used to prove the existence of a conviction, and both Silva-Trevino and Olivas-Motta cite it to suggest that documents not listed there cannot be used to prove a conviction involved moral turpitude. The reverse implication is that all of the documents in that list can be used to prove the offense involved turpitude. The list contains court records, jail records, state criminal histories, etc. The use of those documents to establish the existence of a conviction is not controversial--that is what the statute permits (and that is all that it permits). The unlimited use of those documents to prove the nature of the conviction, however, would create a problem. Some of those documents contain extraneous information that the defendant did not admit and the judge or jury did not find. And the Supreme Court twice last term emphasized that the categorical analysis concerns only those elements that a defendant necessarily was convicted of. The unconsidered citation to 8 U.S.C. 1229a(c)(3)(B) suggests otherwise.