Olivas-Motta
Olivas-Motta v. Holder
Opinion
Lead Opinion
Fletcher, J.
Petitioner Manuel Olivas-Motta is a lawful permanent resident charged with removal under 8 U.S.C. § 1227 (a)(2)(A)(ii) based on his alleged “conviction of’ two *908 crimes involving moral turpitude (“CIMTs”). Petitioner concedes that the first conviction was for a CIMT. He contends that the second was not.
The Immigration Judge (“IJ”) and Board of Immigration Appeals (“BIA”) concluded that the second conviction was for a CIMT, relying on police reports to determine the nature of the conviction. The Attorney General held in Matter of Silvar-Trevino, 24 I. & N. Dec. 687 (A.G. 2008), that an IJ may rely on evidence outside the record of conviction to determine whether a petitioner has been “convicted of’ a CIMT. We join the Third, Fourth, and Eleventh Circuits in holding that Silvar-Trevino was wrongly decided. We hold that an IJ and the BIA are confined to the record of conviction in determining whether an alien has been convicted of a CIMT.
I. Background
Olivas-Motta was brought to the United States by his parents when he was ten days old. At the time of his hearing before the IJ he was thirty-three years old, married, and a lawful permanent resident. He was charged…
Concurring Opinion
Kleinfeld, J.
concurring:
I concur in the result. I respectfully disagree, though, with the majority’s wholesale rejection of deference to the Attorney General’s opinion. We owe deference to the agency charged with construing the statute. The Attorney General’s opinion, reasonably construed, is not arbitrary or capricious. We need not decide in this case whether to accept or reject the opinion, because it was misapplied.
The statute at issue in this case says that an admitted alien shall be removed if the alien has been “convicted of two or more crimes involving moral turpitude.” 1 We held in Marmolejo-Campos v. Holder 2 that “moral turpitude” was “perhaps the quintessential example of an ambiguous phrase,” 3 and that Chevron and Skidmore deference applied to BIA determinations “once the elements of the petitioner’s offense are established” to determine whether the particular crime was one of moral turpitude. 4 We withheld judgment on the third step in the Attorney General’s Silva- Trevino 5 opinion, that Immigration Judges may look beyond the evidence cognizable under Shepard v. United States, 6 because the question was not squarely before us.