BIA on CIMTs - Silva-Trevino III - 26 I&N Dec. 826 (BIA 2016)

Matter of Silva-Trevino,  26 I&N Dec. 826 (BIA 2016) 

Headnotes:

(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.

"In the interest of establishing a uniform national standard despite divergent views in Federal circuit law, we conclude that the categorical and modified categorical approaches provide the appropriate framework for evaluating whether an alien has been “convicted of” a crime involving moral turpitude. Therefore, to the extent that any Board precedent currently indicates that a contrary test should apply, we withdraw from it. E.g., Matter of Ahortalejo-Guzman, 25 I&N Dec. 465 (BIA 2011); Matter of Guevara Alfaro, 25 I&N Dec. 417 (BIA 2011). The respondent has not been convicted of an offense that is categorically a crime involving moral turpitude, and there is no basis to apply the modified categorical approach. He is therefore not inadmissible under section 212(a)(2)(A)(i)(I) of the Act as an alien convicted of a crime involving moral turpitude, and he is not barred from seeking adjustment of status on that basis. Accordingly, the record will be remanded for further consideration of the respondent’s eligibility for relief."

[Hats way off to Lisa Brodyaga!]