In this long-awaited decision, the Ninth Circuit joined the Third, Fourth, and Eleventh Circuits in rejecting the Attorney General’s decision in Matter of Silva Trevino. In Silva Trevino, then-AG Alberto Gonzales outlined a procedure by which IJs were no longer constrained by the categorical and modified categorical approaches and instead could look to evidence outside the record of conviction when determining whether an individual was inadmissible or removable for a crime of moral turpitude (CIMT).
The Ninth Circuit held that the relevant provisions of the INA at issue in Silva Trevino are not ambiguous and that the court therefore does not owe any deference to that decision. First, the court held that, although the term CIMT is “famously ambiguous,” there is nothing about the substantive definition that permits an IJ to use a different procedure than the one used for other crimes (ie the categorical and modified categorical approaches). Second, the court held that Silva Trevino created an erroneous definition of “convicted of” that would allow an IJ to consider crimes the alien may have committed but of which he was not convicted, conflicting with long-established precedent. Third, the court held that the AG was incorrect in finding that “moral turpitude” is not “an element” of a CIMT. Applying the Supreme Court’s analysis in Nijhawan, the court held that a CIMT is a generic crime “whose description is complete unto itself” and that “involving moral turpitude” is an element of the crime, not a descriptive circumstance of a separately defined crime.
The bottom line is that individuals in the Ninth Circuit can no longer be forced to relitigate their convictions in mini-trials before the IJ. A conviction can only be classified as a CIMT if moral turpitude is established through the same procedures called for involving other generic crimes.