Note, the Categorical Approach for Crimes Involving Moral Turpitude After Silva-Trevino

43 Pages Posted: 25 Oct 2018

See all articles by Pooja Dadhania

Pooja Dadhania

California Western School of Law

Date Written: 2011

Abstract

A conviction for a crime involving moral turpitude (CIMT) can result in harsh immigration penalties such as removal from the United States for noncitizens. The designation of a crime as a CIMT depends on whether moral turpitude inheres in its elements. Administrative adjudicators and federal courts have thus been using a categorical approach that focuses on the elements of a crime to determine whether it is a CIMT. Although variations in the categorical approach have developed among the circuits, the categorical approach has customarily employed two steps, both focusing on the elements of the conviction rather than the actions of the noncitizen. In 2008 in Matter of Silva-Trevino, the Attorney General added a third step to the categorical approach that permits adjudicators to consider the acts of the noncitizen convicted of the crime. This Note analyzes the circuit split that widened after Silva-Trevino, focusing on the variations in the first two steps of the categorical approach and on the Attorney General's novel third step. This Note ultimately rejects Silva-Trevino's third step and concludes that adjudicators should adopt a uniform categorical approach to safeguard noncitizens from erroneous deportation and to ensure consistent application of the immigration laws throughout the nation.

Keywords: Immigration, Crimmigration, Categorical Approach

Suggested Citation

Dadhania, Pooja, Note, the Categorical Approach for Crimes Involving Moral Turpitude After Silva-Trevino (2011). 111 Colum. L Rev. 313 (2011). Available at SSRN: https://ssrn.com/abstract=3251568

Pooja Dadhania (Contact Author)

California Western School of Law ( email )

225 Cedar Street
San Diego, CA 92101
United States

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