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Matter of Cristoval SILVA-TREVINO, Respondent

Decided by Attorney General April 10, 2015

U.S. Department of Justice

Office of the Attorney General

The Attorney General vacated the opinion in Matter of Silva-Trevino, 24 I&N Dec. 687 

(A.G. 2008).

BEFORE THE ATTORNEY GENERAL

On November 7, 2008, Attorney General Mukasey issued an opinion in 

this matter vacating the August 8, 2006, decision of the Board of 

Immigration Appeals and remanding respondent’s case for further 

proceedings in accordance with his opinion. See Matter of Silva-Trevino, 

24 I&N Dec. 687 (A.G. 2008). On remand, the Immigration Judge, 

applying Attorney General Mukasey’s opinion, issued a new decision 

finding respondent ineligible for discretionary relief from deportation. The 

Board affirmed that decision. The respondent then filed a petition for 

review with the United States Court of Appeals for the Fifth Circuit. On 

January 30, 2014, the Fifth Circuit rejected Attorney General Mukasey’s 

opinion as contrary to the plain language of the statute, vacated the Board’s 

decision, and remanded this matter to the Board for further proceedings 

consistent with the court’s opinion. See Silva-Trevino v. Holder, 742 F.3d 

197, 200−06 (5th Cir. 2014). For the reasons stated herein, I have 

determined that it is appropriate to vacate Attorney General Mukasey’s 

November 7, 2008, opinion in this matter.

The central issue raised by this case is how to determine whether an 

alien has been “convicted of . . . a crime involving moral turpitude” within 

the meaning of section 212(a)(2) of the Immigration and Nationality Act,

8 U.S.C. § 1182(a)(2) (2012). The Board initially addressed this issue in its 

August 8, 2006, decision in this case, determining that respondent’s 

conviction for the criminal offense of “indecency with a child” should not 

be considered a crime of moral turpitude because the Texas statute under 

which he had been convicted criminalized at least some conduct that did 

not involve moral turpitude and was thus not categorically a crime 

involving moral turpitude. Matter of Silva-Trevino, 24 I&N Dec. at 

690−92. After that decision had issued, Attorney General Gonzales 

directed the Board to refer the case to him for further review. See 

Att’y Gen. Order No. 2889-2007 (July 10, 2007); see also 8 C.F.R. 
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§ 1003.1(h)(1)(i) (2007) (providing that the Attorney General may direct 

the Board to refer cases to him “for review of [the Board’s] decision”).

After review, Attorney General Gonzales’s successor, Attorney General 

Mukasey, issued an opinion vacating the Board’s August 8, 2006, decision 

and establishing a new three-step framework to be used by Immigration 

Judges and the Board in determining whether an alien had been convicted 

of a crime involving moral turpitude. Att’y Gen. Order No. 3016-2008 

(Nov. 7, 2008); Matter of Silva-Trevino, 24 I&N Dec. at 687−90 & n.1, 

704; cf. section 103(a)(1) of the Act, 8 U.S.C. § 1103(a)(1) (2012) (a 

“determination and ruling by the Attorney General with respect to all 

questions of law shall be controlling”).

In the first step of the framework, Attorney General Mukasey directed 

Immigration Judges and the Board to “engage in a ‘categorical inquiry’” in 

order to determine “whether moral turpitude necessarily inheres in all cases 

that have a realistic probability of being prosecuted” under a particular 

criminal provision. Matter of Silva-Trevino, 24 I&N Dec. at 696−97 

(relying on Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 

(2007)). Where this categorical analysis did not resolve the moral turpitude 

inquiry, the Attorney General instructed adjudicators to proceed to the 

second step, a “modified categorical” inquiry “pursuant to which 

adjudicators consider whether the alien’s record of conviction evidences a 

crime that in fact involved moral turpitude.” Id. at 698. Recognizing that 

“[m]ost courts . . . have limited this second-stage inquiry to the alien’s 

record of conviction,” the Attorney General concluded that a third step was 

necessary because “when the record of conviction fails to show whether the 

alien was convicted of a crime involving moral turpitude, immigration 

judges should be permitted to consider evidence beyond that record if doing 

so is necessary and appropriate to ensure proper application of the Act’s 

moral turpitude provisions.” Id. at 699. Accordingly, Attorney General 

Mukasey’s opinion directed Immigration Judges and the Board to consider, 

at the third step in the moral turpitude inquiry, “any additional evidence the 

adjudicator determines is necessary or appropriate to resolve accurately the 

moral turpitude question” when “the record of conviction does not resolve 

the inquiry.” Id. at 704. The Attorney General then remanded the case to 

the Board to “reconsider, consistent with [his] opinion, whether the crime 

respondent committed involved moral turpitude.” Id. at 709. 

On remand, the Board sent the case back to the Immigration Judge 

who—applying the third step in Attorney General Mukasey’s framework—

considered evidence outside of the record of conviction to conclude that 

respondent’s conviction had involved moral turpitude because respondent 

should have known that the victim of his crime was a minor. Silva-Trevino, 

742 F.3d at 198−99. As a result, the Immigration Judge found respondent 
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was inadmissible and thus ineligible for discretionary relief from 

deportation under section 212(a)(2) of the Act. Id. On review, the Board 

affirmed. Id. 

In January of last year, on respondent’s petition for review, the Fifth 

Circuit held that “convicted of” as used in section 212(a)(2) did not permit 

Immigration Judges to inquire into relevant evidence outside of the record 

of conviction in order to classify a particular conviction as one involving 

moral turpitude. Id. at 200−01. In so doing, the court rejected the third 

step of Attorney General Mukasey’s framework as contrary to the 

unambiguous language of the statute and thus refused to accord the 

Silva-Trevino opinion deference. See id. at 203 (“Where, as here, Congress 

has spoken directly to the statutory question at hand, our precedent need not 

yield to an agency’s contrary interpretation.”).

As the Fifth Circuit recognized, in so ruling it became the fifth circuit 

court of appeals to reject Attorney General Mukasey’s construction of the 

statute. Id. at 200 & n.1.1 These courts have all agreed that the phrase 

“convicted of” as used in the Act forecloses any inquiry into evidence 

outside of the record of conviction. Id. Two other circuits have accorded 

deference to Attorney General Mukasey’s construction of the statute as 

reasonable and permitted such an extrinsic inquiry.2 As a result, Attorney 

General Mukasey’s opinion in this matter has not accomplished its stated 

goal of “establish[ing] a uniform framework for ensuring that the Act’s 

moral turpitude provisions are fairly and accurately applied.” Matter of 

Silva-Trevino, 24 I&N Dec. at 688. Instead, the circuits are split, and the 

variance between Attorney General Mukasey’s binding opinion and the 

contrary controlling precedent in some circuits forces Immigration Judges 

and the Board to apply different standards in different jurisdictions. See 

Silva-Trevino, 742 F.3d at 205.

In addition, in the time since Attorney General Mukasey released his 

opinion, the Supreme Court has issued several decisions that may bear on 

administrative determinations of whether an alien has been convicted of a 

crime involving moral turpitude. In Carachuri-Rosendo v. Holder, the 

Court held that adjudicators could not consider uncharged conduct to 

determine whether an alien had been “convicted of” illicit trafficking, an 

aggravated felony under the Act. 560 U.S. 563, 581−82 (2010). Applying 

 

1

See Olivas-Motta v. Holder, 746 F.3d 907, 911−16 (9th Cir. 2013) (amended opinion); 

Prudencio v. Holder, 669 F.3d 472, 480−84 (4th Cir. 2012); Fajardo v. U.S. Att’y Gen.,

659 F.3d 1303, 1307−11 (11th Cir. 2011); Jean-Louis v. Att’y Gen. of U.S., 582 F.3d 462, 

472−82 (3d Cir. 2009).

2 Bobadilla v. Holder, 679 F.3d 1052, 1057 (8th Cir. 2012); Mata-Guerrero v. Holder, 

627 F.3d 256, 260 (7th Cir. 2010).
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Carachuri-Rosendo 3 years later, the Court in Moncrieffe v. Holder

reaffirmed that the phrase “convicted of” required a categorical approach, 

and it rejected the Government’s argument that adjudicators could engage 

in a “circumstance-specific” analysis of a particular drug conviction to 

determine if the quantity of drugs involved made it an aggravated felony. 

133 S. Ct. 1678, 1690−92 (2013); see also Kawashima v. Holder, 132 S. Ct. 

1166, 1172 (2012) (applying the categorical approach to determine if an 

alien had been convicted of an offense involving fraud or deceit). These 

decisions cast doubt on the continued validity of the third step of the 

framework set out by Attorney General Mukasey’s opinion, which directs

Immigration Judges and the Board to go beyond the categorical and 

modified categorical approaches and inquire into facts outside of the formal 

record of conviction in order to determine whether a particular conviction 

involves moral turpitude.

In view of the decisions of five courts of appeals rejecting the 

framework set out in Attorney General Mukasey’s opinion—which have 

created disagreement among the circuits and disuniformity in the Board’s 

application of immigration law—as well as intervening Supreme Court 

decisions that cast doubt on the continued validity of the opinion, 

I conclude that it is appropriate to vacate the November 7, 2008, opinion in 

its entirety.3 My decision to do so does not mean that I disapprove of every 

aspect of that opinion. But because the Board is obliged to follow decisions 

of the Attorney General except to the extent of a contrary directive from a 

reviewing court, see, e.g., Matter of Abdelghany, 26 I&N Dec. 254, 265 

(BIA 2014), only a complete vacatur will enable the Board to develop 

a uniform standard for the proper construction and application 

of section 212(a)(2) of the Act and similar provisions in light of all relevant 

precedents and arguments.

In light of this vacatur, the Board may address, in this case and other 

cases as appropriate, the following issues: 

1. How adjudicators are to determine whether a particular criminal 

offense is a crime involving moral turpitude under the Act;

 

3 Nothing in this order is intended to affect Board determinations that an offense entails 

or does not entail “reprehensible conduct and some form of scienter” and is or is not a 

crime involving moral turpitude for that reason. Matter of Silva-Trevino, 24 I&N Dec. at

706 n.5. In addition to Silva-Trevino, that standard has been applied in the following 

Board precedents: Matter of Ortega-Lopez, 26 I&N Dec. 99 (BIA 2013); Matter of Leal, 

26 I&N Dec. 20 (BIA 2012); Matter of Ruiz-Lopez, 25 I&N Dec. 551 (BIA 2011); Matter 

of Guevera-Alfaro, 25 I&N Dec. 417 (BIA 2011); and Matter of Louissaint, 24 I&N Dec. 

754. As an interim matter, those determinations, as well as determinations in 

nonprecedential decisions applying the standard, shall remain valid. I leave to the Board 

whether to retain, modify, or clarify them in any respect. 
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2. When, and to what extent, adjudicators may use a modified 

categorical approach and consider a record of conviction in determining 

whether an alien has been “convicted of . . . a crime involving moral 

turpitude” in applying section 212(a)(2) of the Act and similar provisions; 

3. Whether an alien who seeks a favorable exercise of discretion under 

the Act after having engaged in criminal acts constituting the sexual abuse 

of a minor should be required to make a heightened evidentiary showing of 

hardship or other factors that would warrant a favorable exercise of 

discretion. See Matter of Jean, 23 I&N Dec. 373 (A.G. 2002) (addressing 

the exercise of discretion in view of alien’s criminal acts). 

The Board should solicit and consider briefs from the parties and 

interested amici as it deems appropriate to ensure that its conclusions on 

these issues are reached after full and fair consideration of all relevant 

arguments. 

The November 7, 2008, opinion, Matter of Silva-Trevino, 24 I&N Dec. 

687 (A.G. 2008), is vacated in its entirety.