Board of Immigration Appeals reversed by Federal Court

us-courtofappeals-11thcircuit-sealToday the Eleventh Circuit Court of Appeals issued a precedent decision inSanchez Fajardo v. U.S. Attorney General, rejecting the Silva-Trevino analysis to determine whether a conviction is for a crime involving moral turpitude. TheSilva-Trevino was a Board of Immigration Appeals decision that expanded the reach of an Immigration Judge to determine whether a particular conviction was a crime involving moral turpitude for immigration purposes. Whereas before, the Immigration Judge was limited to the elements of the statute or the record of conviction, Silva-Trevino permitted the Immigration Judge to consider all evidence including, but not limited to, the police report and witness testimony. Based on this Eleventh Circuit precedent decision, Immigration Judge’s are limited once again to the actual statute under which one was convicted and its elements in determining whether a crime constitutes a crime involving moral turpitude for immigration purposes. This is known as the categorical approach, and where the statute is divisible, the modified categorical approach. The Eleventh Circuit found that going beyond these approaches is contrary to Congressional intent. This case was just published today (October 12, 2011). The implications from this decision will be immediately felt in immigration courts throughout the United States for those currently in removal proceedings and even those who were found removable and may now move to reopen their cases to have them considered under the new (and former) standard. Stay tuned.

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