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Immigration Law - Houston

Fifth Circuit Overturns Silva Trevino!

The U.S. Court of Appeals for the Fifth Circuit held yesterday that courts may no longer look beyond the record of conviction in determining whether a person has been convicted of a crime involving moral turpitude.

In its holding in Silva Trevino v Holder, the Fifth Circuit determined that the longstanding legal practice in determining whether a crime involves moral turpitude has been to apply the categorical analysis and then, if needed, to apply the modified categorical analysis. In Silva Trevino, the attorney general introduced a new, third approach which allowed courts to examine any other evidence that might be “necessary and appropriate” to determine if the crime involved moral turpitude.

The fifth circuit has now held that this new third analysis using any other evidence available is not permissible. As a result of this new decision, courts in the Fifth circuit, which includes Texas and Louisiana, may only look at the language of the criminal statute under which the person was convicted and then, if necessary, only to the record of conviction (which includes includes the indictment or charging document, the judgment, the jury instructions, plea and plea transcript).

This decision is significant for many individuals who face deportation due to criminal convictions as it limits the evidence the Government may introduce to try to argue that they have been convicted of crimes involving moral turpitude.

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