Crimes involving moral turpitude (“CIMTs”) are a vague category of criminal offenses that can render a noncitizen deportable, ineligible for lawful status or relief from deportation, and subject to civil immigration detention pending deportation proceedings. The CIMT category generally includes crimes that have, as an element, the intent to steal, defraud, or injure; the reckless causation of serious injury; and most sex crimes.
The CIMT category has been the subject of continued litigation for more than 50 years. Advocates challenge the CIMT provisions of the immigration laws as unconstitutionally void for vagueness; contest attempts by the government to take the CIMT inquiry outside of the protections of the categorical approach, which the federal agencies and courts have required for CIMT analysis for more than a century. This webpage explains recent litigation and administrative advocacy around the CIMT inquiry, and tools for defense attorneys defending CIMT charges in immigration proceedings and advising noncitizen defendants of the immigration consequences of certain criminal dispositions.
History of litigation and administrative advocacy regarding CIMTs and Matter of Silva-Trevino
In 2008, former Attorney General Robert Mukasey issued a decision, Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008) (Silva-Trevino I), that radically and unfairly altered the methodology for making a CIMT determination by permitting adjudicators to consider evidence outside the record of conviction. The opinion triggered immigration consequences without the protections of the categorical approach for scores of noncitizens, and hampered the ability of criminal defense lawyers to give reliable advice regarding the immigration consequences of negotiated plea bargains to certain criminal charges.
Former Attorney General Eric Holder vacated Silva-Trevino I on April 10, 2015, by signing an order in Matter of Silva-Trevino, 26 I. & N. Dec. 550 (A.G. 2015) (Silva-Trevino II). Silva-Trevino II should give criminal defense lawyers enhanced ability to provide reliable advice regarding the immigration consequences of certain dispositions, as well as greater ability to limit those consequences by controlling what is in the record of conviction.
Key allies in the effort to reverse Silva-Trevino I
The rejection of Silva-Trevino I by Attorney General Holder and five Courts of Appeals is the product of years of coordinated administrate advocacy litigation before the Courts of Appeals by IDP and other immigrant advocacy organizations. The vacatur immediately followed a letter written by Attorney General Holder to withdraw the opinion. IDP and allies were represented before the Attorneys General by the NYU Law School Immigrant Rights Clinic and before the Courts of Appeals by the Cardozo Law School Immigration Justice Clinic.
Litigation Tools and Key Decisions and Briefs
Since the vacatur of Silva-Trevino I, the BIA has solicited amicus briefing in Mr. Silva-Trevino’scase on the question of whether a CIMT determination is made using the categorical approach. The case remains pending at the BIA.
- IDP et al. amicus brief submitted in support of Mr. Silva-Trevino (prepared and submitted by Rebecca Sharpless of the University of Miami School of Law’s Immigration Clinic)
Practice Advisory for Defenders
IDP and allies prepared a practice advisory for criminal defense lawyers regarding the impact of the Silva-Trevino II order on the potential immigration consequences of certain criminal dispositions.
- Attorney General Holder Issues Order That Should Give Defense Lawyers Better Ability to Limit the Immigration Consequences of Guilty Pleas to Certain Charges (April 29, 2015, by IDP, NIP-NLG, and Cardozo Law School’s Immigration Justice Clinic)
Key Court of Appeals Decisions and Briefs Submitted to the Courts of Appeals and Attorney General
Before the vacatur of Silva-Trevino I, five federal Courts of Appeals—the Third, Fourth, Fifth, Ninth, and Eleventh—rejected the decision and reasserted the applicability of the categorical approach in making the CIMT determination. IDP and allies, represented by Cardozo Law School’s Immigration Justice Clinic, submitted amicus briefing in the cases before the Third, Fourth, Fifth, and Ninth Circuits. Additionally, IDP and allies, represented by NYU Law School’s Immigrant Rights Clinic, submitted briefs to the former Attorneys General Mukasey and Holder urging them to withdraw Silva-Trevino I.
- Decision Jean-Louis v. Att’y Gen. of U.S., 582 F.3d 462 (3d Cir. 2009), pet’n for reh’g denied (Apr. 5, 2010)
- Decision Prudencio v. Holder, 669F.3d 472 (4th Cir. 2012)
- IDP et al. amicus brief submitted in Prudencio v. Holder (prepared and submitted by Cardozo Law School’s Immigration Justice Clinic)
- Decision Silva-Trevino v. Holder, 742 F.3d 197 (5th Cir. 2014)
- IDP et al. amicus brief submitted in Silva-Trevino v. Holder (prepared and submitted by Cardozo Law School’s Immigration Justice Clinic)
- Decision Olivas-Motta v. Holder, 716 F.3d 1199 (9th Cir. 2013)
- IDP et al. amicus brief submitted in Olivas-Motta v. Holder (prepared and submitted by Cardozo Law School’s Immigration Justice Clinic)
- Decision Sanchez-Fajardo v. Holder, 659 F.3d 1303 (11th Cir. 2011), pet’n for reh’g denied (Jan. 19, 2012)
- IDP et al. memorandum brief submitted to former Attorney General Mukasey in 2008 (prepared and submitted by NYU Law School’s Immigrant Rights Clinic)
- IDP el al. memorandum brief submitted to former Attorney General Eric Holder in 2009 (prepared and submitted by NYU Law School’s Immigrant Rights Clinic)