AG Holder Orders Change to Crimes Involving Moral Turpitude Approach

In April of 2015, former Attorney General Holder signed an order changing an opinion former Attorney General Mukasey had signed in 2008. A noncitizen that is convicted of a crime in the US may be deported if the crime involved moral turpitude (CIMT). Former AG Holder’s order made the application of this law more predictable, which is an advantage for both immigrants accused of crimes and their criminal defense lawyers.

It has been a long standing fact that judges use the “categorical approach” and “modified categorical approach” to determine whether or not the crime in question meets these criteria. The first is an absolute assessment of whether or not the elements of the statute of conviction constitute a CIMT, which is followed by the using the record of conviction to determine if it is meets the criteria. Former AG Mukasey’s ordered a third step in Matter of Silva- Trevino, 24 I.&N. Dec. 687 (A.G. 2008) that directed judges to consider “any additional evidence the adjudicator determines is necessary or appropriate to resolve adequately the moral turpitude question.” This third step was challenged repeatedly in the years after it was ordered, and five circuit courts rejected the opinion, and in 2014 the Fifth Circuit reversed it. Holder vacated Mukasey’s order on the basis of establishing a uniform framework, and two Supreme Court precedents. Carachuri-Rosendo v. Holder held that judges could not consider uncharged conduct when determining whether an alien had been convicted of trafficking. Moncrieffe v. Holder reaffirmed that the wording of “convicted of” required a categorical approach. Former AG Holder’s order vacates the 2008 order in full. The Board of Immigration Appeals will now determine how judges are to determine CIMT and to what extent a modified categorical approach can be used.

This order allows criminal defense attorneys to once again give reliable and meaningful advice regarding the immigration consequences of guilty pleas. Further, by controlling what is in the record of conviction, the criminal defense attorney can limit the potential immigration consequences. For more information on the subject, we recommend reviewing this document.