AG/BIA New Precedent Decision 10/12/2016

Matter of SILVA-TREVINO, 26 I&N Dec. 826 (BIA 2016)

The BIA concluded that the categorical and modified categorical approaches provide the proper framework for determining when a conviction is for a crime involving moral turpitude (CIMT). The BIA further found that unless the controlling case law of the governing federal court of appeals expressly dictates otherwise, the realistic probability test, which focuses on the minimum conduct that has a realistic probability of being prosecuted under the statute of conviction, should be applied in determining whether an offense is a categorical CIMT. Applying this framework to the respondent’s case, the BIA held that the respondent’s conviction for indecency with a child in Texas was not a categorical CIMT, and remanded the record for further consideration of his application for relief.

(1) The categorical and modified categorical approaches provide the proper framework for determining whether a conviction is for a crime involving moral turpitude.

(2) Unless the controlling case law of the governing Federal court of appeals expressly dictates otherwise, the realistic probability test, which focuses on the minimum conduct that has a realistic probability of being prosecuted under the statute of conviction, should be applied in determining whether an offense is a categorical crime involving moral turpitude.

(3) Under the “minimum reading” approach applied by the United States Court of Appeals for the Fifth Circuit, the respondent’s conviction for indecency with a child under section 21.11(a)(1) of the Texas Penal Code is not for a categorical crime involving moral turpitude.

(4) An alien who has engaged in misconduct involving sexual abuse of a minor is not required to make a heightened evidentiary showing of hardship or other factors to establish that an application for relief warrants a favorable exercise of discretion.

About teperlaw

I am an attorney practicing family law, immigration and wills and estate planning. You can find out more about me and my firm by visiting my website at: www.teperlaw.com 106 W. Franklin Ave. Pennington, NJ 08534 (609) 737-3030
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