Prudencio v. Holder: A Light at the End of the CIMT Tunnel?

On January 30, 2012, the Fourth Circuit released its decision in Prudencio v. Holder, No. 10-2382, which rejected the approach to analyzing crimes involving moral turpitude (CIMT) advanced in Matter of Silva-Trevino 24 I&N Dec. 687 (A.G. 2008). Silva-Trevino allows the Immigration Judge to consider evidence beyond the record of conviction “if doing so is necessary and appropriate” to determine if the conviction is a CIMT. Id. at 699.  This view has been adopted in several Circuits. The rejection of this principle means that in our jurisdiction, the only way one should approach the CIMT issue is under the categorical approach, which looks to the structure of the statute under which the alien was convicted to determine if it is a CIMT, and modified categorical approach, which, in the case of ambiguous criminal statutes, allows for a limited examination of the record of conviction to determine the nature of the alien’s conviction.

The Respondent in Prudencio, at the age of twenty, had sex with a thirteen year-old-girl and infected her with a sexually transmitted disease (Prudencio at 23). He plead guilty to and was convicted of Virginia Code § 18.2-371, a Class 1 misdemeanor (Prudencio at 4). The Court proceeded with the categorical and modified categorical approach and found that the Respondent was not convicted of a CIMT and therefore not removable. In addition, the Court found that Silva-Trevino was an improper extension of executive power under the Constitution and the INA because the CIMT statute (INA §212(a)(2)) is unambiguous in interpretation and the consideration of often-unsubstantiated evidence beyond the record of conviction is unreliable and therefore incongruous to the mission of the immigration judicial system. The dissent sided with Silva-Trevino, noting that Congress’s legislative intent of the moral turpitude statute is to exclude aliens who commit crimes of a “depraved and vile” nature from the United States and it is the responsibility of the Courts and the government agencies to ensure that this mission is carried out consistently, postulating that the best method of action, in the absence of a clear-cut criminal statute, is to conduct a case-by-case analysis that encompasses an examination of all evidence used in adjudicating the alien’s criminal conviction (Prudencio at 25).

The majority opinion will certainly make CIMT determinations more predictable and prevent the Court from getting weighed down in the minutiae of a case, as it appears to give aliens a more predictable and “fair” analysis of their record in that it does not allow an Immigration Judge to re-evaluate evidence from a crime that has already been sentenced and served. However, as the dissent argues, if the alien’s criminal actions are ones that clearly meet the definition of moral turpitude, but the alien is ultimately convicted of a lesser, non-turpitudinous charge, is it acceptable to vacate that alien’s order of removal solely due to a lack of subject matter jurisdiction? Like so many other aspects of immigration law, is a case-by-case analysis of an alien’s claim more adherent to the principles of the INA?

In a perfect world where scientific principles allowed for the practical deceleration of time and politics was not part of the judicial agenda, the case-by-case analysis approach to CIMT analysis is probably the best solution. Most other forms of immigration relief, like asylum and cancellation of removal, mandate an individualized reading of a Respondent’s claim in order to obtain the fairest result. Imagine the injustices that would result if such relief were subject to rigid statutory language. There would be a significantly greater number of individuals who are granted or denied relief based on the luck of which side of the statute their equities fall. In the absence of discrete examination, unfairness prevails. The dissection of a criminal charge, its disposition, and aftermath is no less subjective than whether or not an individual suffered persecution at the hands of an entity that a foreign government was unable or unwilling to control. It is important to note, also, that the Silva-Trevino approach will only apply if the categorical and modified categorical approaches are ineffective at yielding a CIMT determination, and is likely inapplicable in most situations. Without it, though, who is to say that the CIMT conclusion about a statute that is still ambiguous under either approach will present a fair outcome?

Ultimately, in our less-than-perfect world and in the interests of the litigation system, legislative history, and peace of mind, Prudencio was correctly decided. All parties involved in removal proceedings will benefit from the rejection of Silva-Trevino. Respondents and their attorneys will be better able to predict the outcome of a hearing. Their case preparation will be much more targeted and efficient. Aliens will have the advantage of knowing beforehand how their criminal charges may impact their immigration status, thus employing them to obtain effective counsel during their criminal trial to make strategic decisions. The government will also have the ability to narrow or broaden the scope of witness examination during a hearing. Judges will engage in a more systematic fact-finding process due to the fact that only a finite number of evidentiary materials can be taken into consideration when deciding relief.

It will be interesting to see if the Circuit split on Silva-Trevino will be resolved by a Supreme Court decision or by the formulation and adoption of a newer, yet-undetermined standard. For now, Prudencio should be seen as a step in the direction of pro-respondent holdings that will hopefully lead to a more streamlined court process.