No More Silva-Trevino – Evidence That Can and Cannot Be Considered In The “Crime Involving Moral Turpitude” Context

Last week, the Ninth Circuit in Olivas-Motta v. Holder overruled Matter of Silva-Trevino on the issue of whether immigration courts could look beyond the record of conviction when determining if a conviction is a crime involving moral turpitude (CIMT). In Silva-Trevino, the court held that the immigration judge could consider evidence that were not part of the record of conviction. Olivas-Motta rejected that argument and held that, even if an ambiguity exists about a crime, the immigration court can not go beyond the record of conviction to determine whether the crime is one “involving moral turpitude.” The court explained that although the phrase CIMT is ambiguous, it does not mean that outside evidence may be considered to determine if a conviction is in fact a CIMT. The Ninth Circuit also went on to explain that statute does not define “conviction” as criminal acts and that the “conviction,” not “conduct,” is all the courts may consider in evaluating whether a conviction is a CIMT.

This ruling in the jurisdiction of the Ninth Circuit will impact thousands of removal cases. Immigration courts will no longer be allowed to review evidence outside of the record of conviction to determine if an immigrant has been convicted of a CIMT. Whether courts can consider evidence outside the record to determine if an immigrant is eligible for relief when the record of conviction is ambiguous is still unclear as the court did not expressly rule on this issue.

The Supreme Court and other courts have held that the reviewable record in a conviction by plea is limited to:

  • Statutory definition of the offense, as interpreted by caselaw;
  • Charging document, if there is proof that the charge was pled to;
  • Written plea agreement;
  • Transcript of plea colloquy; and
  • Any explicit factual finding by the trial judge to which the defendant assented.