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Recent Eleventh Circuit Decision Overrules the Attorney General on Categorical Approach

In a major decision, the Eleventh Circuit Court of Appeals, overruled a recent decision by the Attorney General, which allowed an Immigration Judge to look outside the record of conviction to determine if a criminal conviction is a Crime Involving Moral Turpitude under relevant immigration laws. The Eleventh Circuit in _ Fajardo v. U.S. Att'y Gen. ,_--- F.3d --- (11th Cir. 2011), disagreed with the Attorney General's decision in Matter of Silva-Trevino, 24 I.&N. Dec. 687 (A.G. 2008). The decision allowed an Immigration Judge to look at outside factors when ruling if a criminal conviction constitutes Crime Involving Moral Turpitude, essentially barring an alien’s admission under INA 212(a)(2)(A)(i)(I).

Fajardo was a citizen of Cuba who was admitted for permanent residence in February 2002. He was convicted of false imprisonment, misdemeanor assault, and misdemeanor battery in March 2002. The Department of Homeland Security placed him into proceedings, when trying to enter the country after an overseas visit in 2005. The Immigration Judge, relying on extraneous information, ruled that he was inadmissible and denied relief. The Board, relying on Silva-Trevino, upheld the Immigration Judge, and Fajardo petitioned the Eleventh Circuit for Review.

The Eleventh Circuit overruled the Board, reasoning that the Board's decision was not entitled to deference since Congressional intent was clear from the statutory language. The court surveyed decades of precedent to conclude that the categorical and modified-categorical approaches should not be disturbed. The court added that immigration authorities should follow one of these approaches by focusing on the conviction itself and determining if the crimes contain the necessary elements of depravity to deem it Crime Involving Moral Turpitude.

This decision illustrates two major points relating to immigration law. First, the decision highlights the importance of federal review of federal agency decision in the immigration law field. Second, the decision highlights the intermingling of criminal and immigration law and the severe consequences criminal convictions have on one's immigration status.

One hopes that the Eleventh Circuit continues its trend of pro-immigrant decisions that would help it shed some of its reputation away.

This post is not intended as legal advice nor is it intended to create any attorney-client relationship.

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