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Ricardo A. Prudencio v. Holder

This Fourth Circuit case rejects the Attorney General's third step in Matter of Silva-Trevino, finding that the Immigration and Nationality Act (INA) is not ambiguous on the procedure to determine whether a crime involved moral turpitude. The court recognized that INA section 237(a)(2)(A)(i) makes a noncitizen deportable only if he has a "conviction" for a crime involving moral turpitude, not for any conviction that may have followed an alleged act of moral turpitude. In other words, the noncitizen must actually plead to, or be found guilty of, an act of moral turpitude to be convicted of it and to thus be deportable.

The court found that the parallel inadmissibility section of the INA, section 212(a)(2)(A)(i)(I), supported its interpretation. Section 212(a)(2)(A)(i)(I), unlike section 237(a)(2)(A)(i), is not limited to convictions; a noncitizen also may be inadmissible if he admits to committing a crime involving moral turpitude (or the essential elements of one). The AG in Silva-Trevino had relied on the "admits having committed" language in the inadmissibility ground to extend the moral turpitude inquiry beyond the record of conviction, but the court pointed out that this case and Silva-Trevino involved convictions (not admissions, nor inadmissibility). Whatever the procedure for admissions to crimes involving moral turpitude, it is not relevant for convictions. Of course, I don't see how the admits having committed language authorizes review of police reports or witness declarations either, since 212(a)(2)(A)(i)(I) specifically refers to admissions by the alien.

The court also rejected the AG's reliance on the word "involving" to broaden the scope of the inquiry, since "crime involving moral turpitude" is a unitary term of art that has more than 100 years of prior history--none of it authorizing the procedure in Silva-Trevino.

Finally, the court noted that the agency retains discretion to determine whether an offense involves "moral turpitude," which the courts have long found to be a notoriously ambiguous phrase. This is a subtle distinction. Moral turpitude may be ambiguous, but the statute unambiguously requires that the noncitizen be convicted of it--i.e., that the act of moral turpitude be admitted by the noncitizen, or found by the court or jury, in the record of conviction. It does not authorize the agency to transform any conviction into a crime involving moral turpitude by using police reports, witness testimony, or other evidence that was not incorporated into the factual basis for the plea or finding of guilt.

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