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On October 12, 2016, the Board of Immigration Appeals (BIA) issued an important decision in the Matter of Silva-Trevino (“Silva-Trevino III”), 26 I&N Dec. 826 (BIA 2016) [PDF version]. This decision followed two Attorney General (AG) precedent decisions in the same case in the Matter of Silva-Trevino (“Silva-Trevino I”), 24 I&N 687 (AG 2008) [PDF version], and the Matter of Silva-Trevino (“Silva-Trevino II”), 26 I&N Dec. 550 (AG 2015) [PDF version].
In Silva-Trevino III, the Board held that the categorical and modified categorical approaches provide the proper framework for assessing whether a criminal conviction is a CIMT. With regard to the categorical approach, the Board held that adjudicators must use the “realistic probability test,” which focuses on the minimum conduct under the statute in question that has “a realistic probability of being prospected” in determining whether the statute is a categorical CIMT. The modified categorical approach allows adjudicators to consider the record of conviction, if the conviction is in violation of a divisible statute, in order to determine whether the person was convicted of a provision of a statute that is for a CIMT rather than for a provision that is not.
To start, the Board held that in order to determine whether an offense is for a CIMT, “the categorical and modified categorical approaches apply.” This notably excludes the assessment of evidence extrinsic to the record of conviction, which was considered to be properly within the scope of inquiry under the circumstances specified in the now vacated decision in Silva-Trevino I.
The Board began by noting that both the government and the respondent agreed that the categorical approach and modified categorical approach constitute the proper framework for determining whether a crime is a CIMT under the INA. The Board added that the parties also agreed that the concept of statutory divisibility, which is necessary for determining which approach applies to a given statute, is governed by the Supreme Court decision in Descamps v. United States, 133 S.Ct. 2276 (2013) [PDF version] (please see our full article on Descamps to learn more [see article]). In addition to this having been the position of five circuit courts in rejecting the framework in Silva-Trevino I, the Board had relied on the categorical approach for over half a century before Silva-Trevino I was issued. To this effect, the Board cited to the Matter of Short, 20 I&N Dec. 136, 137-38 (BIA 1989) [PDF version], and the Mater of S-, 2 I&N Dec. 353 (BIA, AG 1945).
The Board then explained in Silva-Trevino III that, to the maximum extent possible as allowed by the “divergent rulings in the Federal appellate court,.” it would apply the categorical and modified categorical approaches as defined in Supreme Court precedent to create a uniform approach for adjudicating questions of whether an offense is a CIMT, to the maximum extent possible as allowed by the “divergent rulings in the Federal appellate courts.”
After reading this article, please see a collection of our resources on cases about the categorical and modified categorical approaches to study these important principles of statutory interpretation in-depth [see blog].
The Board directed that the first step in an inquiry of whether a conviction for a State or Federal offense is a CIMT is to “examine the State or Federal statute defining the crime of conviction to see if it fits within the generic definition of a [CIMT].” In short, this means that the statute must be analyzed to determine whether any possible offense that may lead to a conviction is a CIMT, or whether it encompasses within its scope offenses that are not CIMTs.
In undertaking the categorical approach, the Board held that adjudicators must apply the “realistic probability test” unless controlling circuit precedent dictates otherwise. Under the realistic probability test, adjudicators must “focus on the minimum conduct that has a realistic probability of being prosecuted under the statute of the conviction, rather than on the facts underlying the respondent's particular violation of that statute.” To this effect, the Board cited to the Supreme Court decisions in Moncrieffe v. Holder, 133 S.Ct. 1678, 1684-85 (2013) [PDF version], and Gonzales v. Deuans-Alvarez, 549 U.S. 183, 193 (2007) [PDF version]. The realistic probability test requires a person charged with a CIMT to “at least point to his own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues” (Duenas-Alvarez at 193). In short, this means that the person charged with having committed a CIMT must find evidence of actual cases where the statute was construed to cover an offense that is not a CIMT, and that it would not be necessarily sufficient to argue that the statute could only hypothetically be applied in such a manner.
However, the Board explained why it is not possible at this time for the realistic probability approach to be applied nationally. First, Moncrieffe used the realistic probability test specifically to determine whether an offense constitutes an aggravated felony. Federal circuit courts have thus far split on whether Moncrieffe applies in the CIMT context as well.
The Board notes that the Seventh, Eighth, Ninth, and Tenth Circuits have all adopted the realistic probability standard for adjudicating whether a conviction is for a CIMT. They have done so in the following cases:
Cano-Oyazabal v. Holder, 774 F.3d 914, 917 (7th Cir. 2014) [PDF version]
Villatoro v. Holder, 760 F.3d 872, 877-79 (8th Cir. 2014) [PDF version]
Leal v. Holder, 771 F.3d 1140, 1145 (9th Cir. 2014) [PDF version]
Rodriguez-Heredia v. Holder, 639 F.3d 1264, 1267 (10th Cir. 2011) [PDF version]