Ricardo Prudencio v. Eric Holder, Jr. , 669 F.3d 472 ( 2012 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
RICARDO A. PRUDENCIO, 
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney
General,
Respondent.
IMMIGRANT DEFENSE PROJECT;  No. 10-2382
NATIONAL IMMIGRATION
PROJECT OF THE NATIONAL LAWYERS
GUILD; IMMIGRANT LEGAL RESOURCE
CENTER; KATHRYN O. GREENBERG
IMMIGRATION JUSTICE CLINIC OF THE
BENJAMIN N. CARDOZO SCHOOL OF
LAW,
Amici Supporting Petitioner.

On Petition for Review of an
Order of the Board of Immigration Appeals.
Argued: September 21, 2011
Decided: January 30, 2012
Before TRAXLER, Chief Judge, and SHEDD and
KEENAN, Circuit Judges.
2 PRUDENCIO v. HOLDER
Petition granted; vacated and final judgment by published
opinion. Judge Keenan wrote the opinion, in which Chief
Judge Traxler joined. Judge Shedd wrote a dissenting opinion.
COUNSEL
ARGUED: Hilario Mercado, Jr., MERCADO LAW FIRM,
PLC, Falls Church, Virginia, for Petitioner. Jesse Matthew
Bless, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent. ON BRIEF: Tony West,
Assistant Attorney General, Civil Division, Jennifer Paisner-
Williams, Senior Litigation Counsel, Office of Immigration
Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent. Peter L. Markowitz, BEN-
JAMIN N. CARDOZO SCHOOL OF LAW, New York, New
York, for Amici Supporting Petitioner.
OPINION
BARBARA MILANO KEENAN, Circuit Judge:
Ricardo A. Prudencio is a native and citizen of El Salvador
who has been granted lawful permanent resident alien status
in the United States. He petitions this Court for review of a
decision of the Board of Immigration Appeals (the Board), in
which the Board dismissed his appeal from an immigration
judge’s decision classifying him as an alien subject to
removal under section 237(a)(2)(A)(i) of the Immigration and
Nationality Act (INA), 8 U.S.C. § 1227(a)(2)(A)(i).
The order of removal was based on the immigration judge’s
determination that Prudencio previously had been convicted
of a crime involving moral turpitude. In making this determi-
nation, the immigration judge considered information
obtained using the three-step procedural framework estab-
PRUDENCIO v. HOLDER 3
lished by the Attorney General in Matter of Silva-Trevino, 24
I&N Dec. 687 (A.G. 2008). Because we conclude that the
moral turpitude provisions of the INA are not ambiguous and
do not contain any gap requiring agency clarification, we hold
that the procedural framework established in Silva-Trevino
was not an authorized exercise of the Attorney General’s
authority under Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, 467 U.S. 837 (1984). Accordingly, we grant
Prudencio’s petition and vacate the Board’s decision and the
order providing for Prudencio’s removal.
I.
Before the decision in Silva-Trevino, the majority of our
sister circuits applied the categorical and modified categorical
approaches set forth in Taylor v. United States, 495 U.S. 575(1990), and Shepard v. United States, 544 U.S. 13 (2005), in
determining whether an alien’s prior conviction qualified as
a crime involving moral turpitude under the INA. The Attor-
ney General purported to alter application of these traditional
approaches in Silva-Trevino. Primarily, the Attorney General
concluded that if, after application of the categorical and mod-
ified categorical approaches, an alien’s record of conviction
still is inconclusive, immigration judges should engage in an
additional third step of analysis and "consider any additional
evidence the adjudicator determines is necessary or appropri-
ate" to resolve whether the alien was convicted of a crime
involving moral turpitude. 24 I&N Dec. at 704.
II.
Prudencio was accorded lawful permanent resident alien
status in September 2005. In October 2009, he was charged
in Prince William County, Virginia, with a violation of Vir-
ginia Code § 18.2-63 for the carnal knowledge, without the
use of force, of a 13-year-old child (the carnal knowledge
statute). In March 2010, in the Prince William County Juve-
nile and Domestic Relations District Court, Prudencio pleaded
4 PRUDENCIO v. HOLDER
guilty to the amended charge of contributing to the delin-
quency of a minor (the 2010 conviction), in violation of Vir-
ginia Code § 18.2-371 (the delinquency statute), a
misdemeanor. He received a sentence of 12 months’ incarcer-
ation with six months suspended.
In June 2010, the Department of Homeland Security (DHS)
initiated removal proceedings against Prudencio under 8
U.S.C. § 1227(a)(2)(A)(i).1 DHS argued that Prudencio was
subject to removal because, within five years of his admission
into the United States, he had been convicted of a crime
involving moral turpitude for which a sentence of one year or
longer could have been imposed. DHS based its action on
Prudencio’s conviction under the delinquency statute, which
provides in relevant part:
Any person 18 years of age or older, including the
parent of any child, who (i) willfully contributes to,
encourages, or causes any act, omission, or condition
which renders a child delinquent, in need of services,
in need of supervision, or abused or neglected as
defined in § 16.1-228, or (ii) engages in consensual
sexual intercourse with a child 15 or older not his
spouse, child, or grandchild, shall be guilty of a
Class 1 misdemeanor.
Va. Code § 18.2-371.
In considering DHS’s request for removal, the immigration
judge used the three-step procedural framework established
by the Attorney General in Silva-Trevino. Under this proce-
dural framework, the immigration judge first applied the cate-
1
DHS asserted two other bases for removal, which DHS later withdrew.
Additionally, DHS charged Prudencio with a violation of section
237(a)(2)(E)(i) of the INA, which the immigration judge declined to
address. However, the alleged violation of section 237(a)(2)(E)(i) is not
before us, because DHS has not filed a cross-appeal.
PRUDENCIO v. HOLDER 5
gorical approach approved in Taylor and Shepard to
determine if every conviction under the delinquency statute
inherently involved moral turpitude. Because he concluded
that the statute was divisible, encompassing some crimes that
involve moral turpitude and others that do not, the immigra-
tion judge proceeded to the second step of the Silva-Trevino
framework, under which he applied the modified categorical
approach articulated in Taylor and Shepard and reviewed Pru-
dencio’s record of conviction. Upon determining that the
record of conviction was inconclusive, the immigration judge
proceeded to apply the third step of the Silva-Trevino proce-
dural framework.
Pursuant to this third step, when the record of conviction
does not establish conclusively under which portion of a
divisible statute an alien was convicted, the Attorney General
has authorized immigration judges to consider evidence
beyond the record of conviction to the extent they deem it
"necessary and appropriate."2 Silva-Trevino, 24 I&N Dec. at
690. Applying this third step in the present case, the immigra-
tion judge reviewed the narrative report prepared by the
Prince William County Police Department relating to the
2010 conviction, which indicated that Prudencio had sexual
relations with a 13-year-old girl when he was over the age of
18. Based on this information, the immigration judge sus-
tained the removal charge and ordered that Prudencio be
removed to El Salvador.
Prudencio appealed the order of removability to the Board,
advancing two main arguments. First, he challenged the pro-
cedural framework established in Silva-Trevino, asserting that
the framework was predicated on an impermissible reading of
2
The Attorney General used the phrase "necessary and appropriate"
twice in outlining his procedural framework. Silva-Trevino, 24 I&N Dec.
at 690, 699 (emphasis added). However, in summarizing the framework
twice and in employing it in the case itself, he used the phrase "necessary
or appropriate." Id. at 687, 704, 708 (emphasis added).
6 PRUDENCIO v. HOLDER
the INA. Second, he contended that the documents reviewed
by the immigration judge under the third step of the Silva-
Trevino framework conclusively established that Prudencio
was convicted under subsection (i) of the delinquency statute,
which does not encompass crimes involving moral turpitude.
Prudencio argued that only a conviction under subsection
(ii) of the delinquency statute, involving consensual sexual
intercourse with a child 15 or older, qualified as a crime
involving moral turpitude. Because the documents considered
by the immigration judge showed that the victim was not 15
years of age or older, Prudencio asserted that he could not
have been convicted under subsection (ii) of the delinquency
statute and, therefore, must have been convicted under sub-
section (i) of that statute.
The Board rejected Prudencio’s arguments and dismissed
his appeal. In reaching its decision, the Board upheld the
immigration judge’s application of the three-step procedural
framework established in Silva-Trevino. The Board further
concluded that Prudencio did "not dispute the immigration
judge’s findings of fact," and that Prudencio had acknowl-
edged that his initial charge under the carnal knowledge stat-
ute was based on a sexual encounter with a female minor.
III.
A.
Prudencio argues on appeal that we should not defer to the
Silva-Trevino procedural framework, but instead should limit
our review to the categorical and modified categorical
approaches in determining whether he was convicted of a
crime involving moral turpitude. Prudencio contends that
under either of these approaches, his conviction cannot be
classified as a crime involving moral turpitude.
Because the Silva-Trevino procedural framework is central
to the resolution of this appeal, we begin our analysis with a
PRUDENCIO v. HOLDER 7
review of that case. Cristoval Silva-Trevino was a native of
Mexico admitted to the United States as a lawful permanent
resident. Silva-Trevino, 24 I&N Dec. at 690. In 2004, he
entered a plea of "no contest" in a Texas state court to the fel-
ony offense of "indecency with a child," in violation of Texas
Penal Code § 21.11(a)(1). Silva-Trevino, 24 I&N Dec. at 690.
That statute prohibits, among other things, sexual contact with
a child younger than 17 years of age by a person at least three
years older who is not married to the child. Tex. Penal Code
Ann. § 21.11(a)(1).
Arguing that Silva-Trevino had been convicted of an aggra-
vated felony, DHS began removal proceedings against him
the following year under 8 U.S.C. § 1227(a)(2)(A)(iii). Silva-
Trevino, 24 I&N Dec. at 691. The immigration court deter-
mined that Silva-Trevino’s conviction was categorically a
crime involving moral turpitude, rendering him ineligible for
adjustment of status. Id. Therefore, the immigration court
ordered his removal from the United States. Id.
The Board reversed the immigration court’s decision, con-
cluding that under both the categorical and the modified cate-
gorical approaches, DHS had failed to establish that Silva-
Trevino’s conviction qualified as a crime involving moral tur-
pitude. Id. at 692. Although DHS did not appeal the Board’s
decision, the Attorney General directed that the Board refer
the case to him under 8 C.F.R. § 1003.1(h)(1)(i). The Attor-
ney General stated that the case presented him with "an
opportunity to establish a uniform framework for ensuring
that the [INA]’s moral turpitude provisions are fairly and
accurately applied." Silva-Trevino, 24 I&N Dec. at 688.
In his decision in Silva-Trevino, the Attorney General
established a three-step procedural framework for determining
whether an alien’s conviction qualifies under the INA as a
crime involving moral turpitude. Id. at 704. In support of his
analysis, the Attorney General observed that the various cir-
cuit courts of appeal have applied different standards in their
8 PRUDENCIO v. HOLDER
categorical and modified categorical analyses. Id. at 693-94.
Invoking section 103(a)(1) of the INA and 8 C.F.R.
§ 1003.1(d)(1), the Attorney General purported to establish a
uniform framework for use throughout the nation for deter-
mining whether an alien’s conviction qualifies as a crime
involving moral turpitude. Id. at 695-96. His stated basis for
this action was his contention that the relevant sections of the
INA are ambiguous, and that "administrative agencies are not
bound by prior judicial interpretations of ambiguous statutory
provisions." Id. at 696 (citing National Cable & Telecomms.
Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005)).
The three-step procedural framework established by the
Attorney General in Silva-Trevino starts with a categorical
approach, under which the inquiry is terminated if the statute
at issue categorically either requires or excludes conduct
involving moral turpitude. The Attorney General stated that if,
however, there is a "realistic probability" that the statute could
be applied to encompass conduct that does not involve moral
turpitude, as well as conduct that does, the inquiry must con-
tinue to a second step of analysis. Id. at 697 (quoting Gon-
zales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)).
The second step described in Silva-Trevino is the modified
categorical approach approved by the Supreme Court in Tay-
lor and Shepard. At this stage in the analysis, the immigration
judge reviews the record of conviction to determine whether
the alien’s conviction qualifies under the statute as a crime
involving moral turpitude. Silva-Trevino, I&N Dec. at 698-99.
If the documents subject to review do not conclusively
resolve the inquiry, the Attorney General directed that immi-
gration judges should proceed to a third step. Id. at 699. It is
the addition of this third step that deviates most significantly
from the categorical and modified categorical approaches
applied in this circuit and in the majority of our sister circuits.
Under the third step of the Silva-Trevino procedural frame-
work, the Attorney General authorized immigration judges to
PRUDENCIO v. HOLDER 9
consider evidence beyond the record of conviction "if doing
so is necessary and appropriate." Id. The Attorney General did
not provide any guidance on the kind of evidence that may be
considered under this third step, stating only that the immigra-
tion judge may "consider any additional evidence or fact find-
ing" that the judge "determines is necessary or appropriate to
resolve accurately the moral turpitude question." Id. at 708.
B.
The Attorney General has based his decision to establish
this three-step procedural framework on his determination
that the use of the phrase "moral turpitude" in the INA is
ambiguous. The text of the statute on which the Attorney
General relies provides, in relevant part, that "any alien con-
victed of, or who admits having committed or who admits
committing acts which constitute the essential elements of a
crime involving moral turpitude . . . is inadmissible." 8 U.S.C.
§ 1182(a)(2)(A)(i)(I) (the moral turpitude statute).3
The Attorney General opined that the statute is "silent on
the precise method that immigration judges and courts should
use to determine if a prior conviction is for a crime involving
moral turpitude." Silva-Trevino, 24 I&N Dec. at 693. He con-
cluded that "[t]o the extent [the statute] does suggest a
method, the text actually cuts in different directions." Id.
According to the Attorney General, certain language, such as
the use of the word "convicted" rather than "committed" at the
beginning of the statute, suggests that the inquiry should be
categorical and should focus on the statutory elements
required for conviction, rather than on the particular facts of
an individual crime. Id. He asserted that other language, how-
3
Both this case and Silva-Trevino involve 8 U.S.C. § 1227(a)(2)(A)(i),
which employs the phrase "crime involving moral turpitude." However, a
greater understanding of that phrase comes from its use in 8 U.S.C.
§ 1182(a)(2)(A)(i)(I). Accordingly, we will conduct our analysis based on
this latter statute, as the Attorney General does in Silva-Trevino.
10 PRUDENCIO v. HOLDER
ever, "seems to call for, or at least allow, inquiry into the par-
ticularized facts of the crime." Id. In support of this latter
proposition, the Attorney General identified two statutory ref-
erences: (1) the use of the word "involving," and (2) the lan-
guage regarding aliens who admit to "committing" certain
"acts." Id. We disagree with the Attorney General’s interpre-
tation.
IV.
In reviewing the Attorney General’s analysis and the proce-
dural framework established in Silva-Trevino, we first con-
sider Prudencio’s argument challenging the basis for the
Attorney General’s invocation of his authority. Because Pru-
dencio opposes an agency determination reached through
adjudication, we employ the analysis prescribed by the
Supreme Court in Chevron. 467 U.S. 837.
Under the Chevron analysis, we first consider whether
"Congress has directly spoken to the precise question" at
issue. Id. at 842. If, using traditional tools of statutory con-
struction, we determine that Congress manifested an intention
on the precise question, such intention must be given effect
and the analysis concludes. Id. at 842-43 n.9. When, however,
the statute is ambiguous or silent with respect to the precise
issue, we must proceed to decide whether the agency’s inter-
pretation of the statute is reasonable and, thus, is entitled to
deference. Id. at 843.
We previously have accorded substantial deference to
DHS’s interpretation of the statutes and regulations that the
agency administers. Yousefi v. U.S. INS, 260 F.3d 318, 325
(4th Cir. 2001) (per curiam). In Yousefi, we held that the
Chevron framework provides the appropriate method for ana-
lyzing DHS’s determination regarding what type of conduct
involves moral turpitude under the INA. Id. at 326. We
observed that deference was appropriate in that circumstance
because Congress did not define the phrase "crime involving
PRUDENCIO v. HOLDER 11
moral turpitude," instead "leaving the phrase to administrative
and judicial interpretation." Id. at 326.
We face a different question in this appeal. At issue in this
case is not what conduct or statutory offense qualifies as a
crime involving moral turpitude, but rather what language in
the moral turpitude statute informs an adjudicator of the pro-
cedure for determining whether a particular conviction quali-
fies as a crime involving moral turpitude. In part of its
argument, DHS conflates these concepts and relies on the
asserted ambiguity inherent in the phrase "crime involving
moral turpitude" to justify deference to the Attorney Gener-
al’s three-step procedural framework.
These two concepts, however, require distinct inquiries. In
answering the question before us, whether the moral turpitude
statute provides direction concerning the process for deter-
mining whether a particular conviction qualifies as a crime
involving moral turpitude, we are guided by the Chevron
analysis.
A.
Under the Chevron analysis, we consider the language of
the moral turpitude statute to resolve whether the statutory
language is ambiguous or silent regarding the appropriate pro-
cedure for determining whether a particular conviction
involves moral turpitude. See Chevron, 467 U.S. at 843. In
making this assessment, we consider the statute’s plain lan-
guage. Id. at 843 n.9.
The moral turpitude statute provides, in material part, that:
Except as provided in clause (ii), any alien convicted
of, or who admits having committed or who admits
committing acts which constitute the essential ele-
ments of—
12 PRUDENCIO v. HOLDER
(I) a crime involving moral turpitude (other
than a purely political offense) or an
attempt or conspiracy to commit such a
crime . . .
is inadmissible.
8 U.S.C. § 1182(a)(2)(A)(i)(I).
This language in the moral turpitude statute includes three
distinct provisions that are relevant here. First, under the stat-
ute, any alien who is convicted of a crime involving moral
turpitude is inadmissible. Second, the statute precludes the
admission of any alien who has admitted having committed a
crime involving moral turpitude. Third, the statute bars admis-
sion of any alien who has admitted committing acts that sat-
isfy the essential elements of a crime involving moral
turpitude.
These three provisions fall into two separate categories,
namely, a category involving convictions and a category
involving admissions. The statutory language addressing con-
victions is found exclusively in the first part of the moral tur-
pitude statute. This first portion of the statute is the one at
issue in this case, and was central to the decision in Silva-
Trevino.
In contrast, the statutory category referring to admissions is
found in the second and third provisions of the statute, and
addresses only acts that an alien has admitted committing.
The language regarding "committing acts," relied on by the
Attorney General, only appears within this portion of the stat-
ute addressing admissions, and not the part of the statute
addressing convictions. Because there are no admissions at
issue in the present case, and likewise were none at issue in
Silva-Trevino, the Attorney General’s reliance on the words
"committing acts" in support of his finding of statutory
ambiguity is misplaced.
PRUDENCIO v. HOLDER 13
We also disagree with the Attorney General’s analysis of
the word "involving." In Silva-Trevino, the Attorney General
interpreted the word in isolation, relying on the dissent in
Marciano v. INS, which unsuccessfully argued that adjudica-
tors should determine whether "moral turpitude was in fact
involved" in reviewing prior convictions. Silva-Trevino, 24
I&N Dec. at 693 (quoting Marciano v. INS, 450 F.2d 1022,
1028 (8th Cir. 1971) (Eisele, J., dissenting)) (emphasis
added). The Attorney General asserted that, viewed in this
context, the word "involving" allows for an inquiry into the
particular facts underlying a conviction. See Silva-Trevino, 24
I&N Dec. at 693. However, both the context in which this
word is used and the structure of the statute refute the Attor-
ney General’s interpretation.
The word "involving" must be considered in its statutory
context. As set forth in the statute, the participle "involving"
cannot be divorced from the unitary phrase "crime involving
moral turpitude," which is a term of art that has been used for
over one hundred years and predates the INA. See Jean-Louis
v. Attorney General, 582 F.3d 462, 477 (3d Cir. 2009) (citing
Jordan v. De George, 341 U.S. 223, 227 (1951) and Baxter
v. Mohr, 37 Misc. 833, 76 N.Y.S. 982 (1902)). As the Third
Circuit noted in Jean-Louis, the use of the term "involving"
in the phrase "crime involving moral turpitude" is no more
expansive than use of the word "of" in the term "crime of vio-
lence." Id. at 478.
This unitary understanding of the phrase "crime involving
moral turpitude" is supported by another part of the moral tur-
pitude statute. While the third provision in the statute refer-
ring to admissions is not directly applicable to the resolution
of this case, its construction illuminates the cohesive nature of
the phrase "crime involving moral turpitude." That provision
states that "any alien . . . who admits committing acts which
constitute the essential elements of a crime involving moral
turpitude . . . is inadmissible." 8 U.S.C. § 1182(a)(2)(A)(i)(I).
This syntax demonstrates that the focus of the statutory
14 PRUDENCIO v. HOLDER
inquiry in this case is not the acts of moral turpitude them-
selves, but the admissions establishing the essential elements
of a particular type of crime, in this case, a crime involving
moral turpitude. Therefore, this statutory language reinforces
the conclusion that the focus of the inquiry directed by the
statute is the alien’s actual conviction, not the conduct under-
lying that conviction.
We also consider Congress’ use of the word "conviction"
in the moral turpitude statute. The meaning of the word does
not change when used in an immigration statute, as opposed
to its customary application in criminal statutes. To assign a
different statutory meaning to the word "conviction" in the
isolated context of crimes involving moral turpitude, and only
within the realm of the INA, as the Attorney General proposes
in Silva-Trevino, 24 I&N Dec. at 704, thus lacks both logic
and statutory support.
Based on these considerations, we conclude that the plain
language of the moral turpitude statute is not ambiguous.
Because the relevant statutory language refers only to convic-
tions, not to conduct or to "committing" acts, there is no
uncertainty in the statutory language created by the use of the
phrase "convicted of" in the same statute as the words "com-
mitting" and "involving." Thus, in a case such as the present
one in which the only issue is the alien’s prior conviction, the
statute unambiguously directs that an adjudicator consider
only the conviction itself, and not any underlying conduct.
B.
Because the moral turpitude statute is not ambiguous, DHS
is authorized under Chevron to fill a gap in the statutory
scheme only if the statute is silent regarding the process for
determining whether a particular conviction qualifies as a
crime involving moral turpitude. See Chevron, 467 U.S. at
843; Nat’l City Bank v. Turnbaugh, 463 F.3d 325, 332 (4th
Cir. 2006). DHS argues that such a gap exists because neither
PRUDENCIO v. HOLDER 15
the INA generally, nor the moral turpitude statute in particu-
lar, prescribes the methodology by which an adjudicator
determines whether a crime qualifies as a crime involving
moral turpitude.
Contending that there is a gap in this aspect of the statutory
language, DHS observes that the term "moral turpitude" will
not arise in an alien’s record of conviction because the phrase
is not a statutory element of any state or federal crime. There-
fore, DHS asserts, a circumstance-specific inquiry is permissi-
ble under the INA. Further, in an attempt to distinguish the
Supreme Court’s decisions in Taylor and Shepard, DHS
emphasizes that these cases were decided in the context of
criminal statutes and thus are not binding in interpreting the
INA. We address these arguments in turn.
Although DHS is correct that the term "moral turpitude" is
not usually an element of an offense and thus will not appear
literally in the record of conviction, courts nevertheless have
been able to interpret this phrase for over a century, and a
robust body of law has developed in this regard. Moreover,
DHS retains the authority to classify various types of offenses
as "crimes involving moral turpitude," rendering fact-specific
inquiries into individual violations unnecessary. See Yousefi,
260 F.3d at 326. And, plainly, prosecutors retain the ability to
highlight aspects of moral turpitude present in individual
offenses by ensuring that these aspects appear in the record of
conviction in the content of plea colloquies, in explicit factual
findings made by the trial judge, or in jury instructions given
in the underlying criminal cases. See Shepard, 544 U.S. at 15;
Taylor, 495 U.S. at 602.
Our conclusion is not altered by DHS’s argument that the
Supreme Court’s holding in Nijhawan v. Holder, 129 S. Ct.
2294 (2009), decided after the decision in Silva-Trevino, sup-
ports the use of a circumstance-specific analysis in applying
the INA. DHS broadly asserts that the holding in Nijhawan
permits an adjudicator to consider facts outside the record of
16 PRUDENCIO v. HOLDER
conviction when considering statutory criteria that are not
characteristically an element of an offense. In Nijhawan, an
alien faced removal for his conviction of an aggravated
offense "that . . . involves fraud or deceit in which the loss to
the victim or victims exceeds $10,000." Id. at 2297 (emphasis
in original) (quoting 8 U.S.C. § 1101(a)(43)(M)(i)). The Court
noted that this language does not refer to an element of the
fraud or deceit crime but "to the particular circumstances in
which an offender committed" this type of crime "on a partic-
ular occasion." Id. at 2298. DHS bases its argument on this
specific language.
We disagree that the quoted language in Nijhawan permits
an unrestricted circumstance-specific inquiry in the absence
of express guidance from Congress. In 8 U.S.C.
§ 1101(a)(43)(M)(i), Congress modified the generic crime of
"fraud or deceit" with a qualifying phrase that requires a fact-
specific review. No analogous command exists in the moral
turpitude statute in the INA. The phrase "crime involving
moral turpitude" is not modified by any other statutory direc-
tive. Therefore, DHS’s entreaty that we consider mere factual
allegations made in the underlying criminal case cannot be
reconciled with the statutory directives established by Con-
gress in the INA.
In addition to the fact that there is no statutory support in
the INA for expanding the reach of Nijhawan, practical con-
siderations also demonstrate its inapplicability. As noted
above, the phrase "crime involving moral turpitude" is a term
of art in a way that "offense . . . in which the loss to the victim
or victims exceeds $10,000" is not. The contours of the phrase
"crime involving moral turpitude" have been developed over
a long history of judicial interpretation, while the phrase a
"loss [that] exceeds $10,000" is an objective criterion that
requires no interpretation whatsoever. Thus, an inquiry
whether a loss exceeds $10,000 involves only the inspection
of a single threshold fact, but a determination whether a par-
ticular conviction was for a crime involving moral turpitude
PRUDENCIO v. HOLDER 17
often could require evaluation of all the evidence in an under-
lying criminal case by an adjudicator wholly unfamiliar with
those proceedings.
Such an unbridled evaluation poses very real evidentiary
concerns. The third step of the Silva-Trevino framework
allows an immigration judge to rely on documents of ques-
tionable veracity as "proof" of an alien’s conduct. These doc-
uments, such as police reports and warrant applications, often
contain little more than unsworn witness statements and initial
impressions. Indeed, these materials are designed only to per-
mit a determination of probable cause. Further, because these
submissions are generated early in an investigation, they do
not account for later events, such as witness recantations,
amendments, or corrections. To confer upon such materials
the imprimatur of fact, even for the narrow application of
removal proceedings involving questions of moral turpitude,
accords these documents unwarranted validity.
Although DHS correctly observes that immigration
removal proceedings are civil, rather than criminal, in nature,
this difference does not affect the risks inherent in considering
facts only alleged, but not necessarily proved, in the underly-
ing criminal proceedings. As the Supreme Court has empha-
sized repeatedly, "the practical difficulties and potential
unfairness of a factual approach are daunting." Shepard, 544
U.S. at 20; Taylor, 495 U.S. at 601. Therefore, we decline to
sanction such a factual approach here.
Based on these considerations, we conclude that the moral
turpitude statute is neither ambiguous nor silent, but explicitly
directs that apart from certain types of admissions made by a
defendant at his criminal proceedings, an adjudicator applying
the moral turpitude statute may consider only the alien’s prior
conviction and not the conduct underlying that conviction.
Thus, under the Chevron analysis, we do not defer to the
Attorney General’s establishment of a three-step procedural
18 PRUDENCIO v. HOLDER
framework for determining whether a particular conviction is
for a crime involving moral turpitude.
We observe that our rejection of the Silva-Trevino frame-
work is in accord with decisions of three of our sister circuits.
In Jean-Louis, the Third Circuit engaged in an extensive anal-
ysis of the Attorney General’s decision, concluding that the
moral turpitude statute was not ambiguous. 582 F.3d 462. In
a more abbreviated review, the Eighth Circuit declined an
alien’s entreaty to employ Silva-Trevino’s third step and held
that the Attorney General’s decision was not entitled to defer-
ence. Guardado-Garcia v. Holder, 615 F.3d 900, 902 (8th
Cir. 2010). Most recently, the Eleventh Circuit rejected the
Silva-Trevino framework after employing an analysis similar
to the one we have applied here. See Fajardo v. U.S. Attorney
General, 659 F.3d 1303 (11th Cir. 2011). In Fajardo, the
Eleventh Circuit concluded that DHS’s interpretation of the
moral turpitude statute was not entitled to deference under
Chevron because the term "conviction" is unambiguous. Id.Upon our rejection of the Silva-Trevino framework, we
apply the analysis developed in Taylor and Shepard. Accord-
ingly, we proceed to consider the present record guided by
those decisions.
V.
A.
To determine whether Prudencio’s conviction was for a
crime involving moral turpitude, we first apply the categorical
approach. This approach is mandated by Congress’ choice to
define the condition of deportation in terms of "convictions,"
rather than "conduct." See Taylor, 495 U.S. at 600-01. This
analysis requires that we examine the statutory elements of
the crime, and not consider the facts or conduct of the particu-
lar violation at issue. See Yousefi, 260 F.3d at 326 (citing Cas-
tle v. INS, 541 F.2d 1064, 1066 (4th Cir. 1976) (per curiam)).
PRUDENCIO v. HOLDER 19
In employing these approaches for purposes of the INA, we
accord the Attorney General deference regarding the determi-
nation of what type of conduct involves moral turpitude.
Yousefi, 260 F.3d at 326. The Attorney General has directed
that, generally, a crime involves moral turpitude if it is "inher-
ently base, vile, or depraved and contrary to accepted rules of
morality and the duties owed between persons or to society in
general." Matter of Olquin, 23 I&N Dec. 896, 896 (B.I.A.
2006).
The delinquency statute, as we have observed, consists of
two subsections. Subsection (i) punishes "[a]ny person 18
years of age or older . . . who willfully contributes to, encour-
ages, or causes any act, omission, or condition which renders
a child delinquent, in need of services, in need of supervision,
or abused or neglected . . . ." Va. Code § 18.2-371. As DHS
acknowledges, this subsection encompasses various behav-
iors, such as the inducement of a minor to commit the misde-
meanor crime of trespassing, see Hubbard v. Commonwealth,
152 S.E.2d 250, 253 (Va. 1967), which do not qualify as
crimes involving moral turpitude.
Subsection (ii) of the delinquency statute, however, crimi-
nalizes conduct of a different nature. That subsection punishes
any person 18 years of age or older who "engages in consen-
sual sexual intercourse with a child 15 or older not his spouse,
child, or grandchild." Va. Code § 18.2-371.
The Attorney General has concluded that for purposes of
applying the INA, "any intentional sexual contact by an adult
with a child involves moral turpitude." Silva-Trevino, 24 I&N
Dec. at 705 (emphasis in original); see also Castle, 541 F.2d
at 1066 ("It is well established that the Maryland statutory
offense of carnal knowledge of a female between the ages of
fourteen and sixteen years manifestly involves moral turpi-
tude.") (quotation marks omitted). Based on this determina-
tion by the Attorney General regarding the scope of conduct
constituting a crime of moral turpitude under the INA, we
20 PRUDENCIO v. HOLDER
hold that a conviction under subsection (ii) of the delinquency
statute constitutes a conviction of a crime involving moral tur-
pitude. See Yousefi, 260 F.3d at 326. However, because the
delinquency statute also encompasses behaviors that do not
qualify as crimes involving moral turpitude, the categorical
approach does not resolve our inquiry, and we proceed under
the modified categorical approach to consider further whether
Prudencio was convicted of a crime involving moral turpi-
tude. See Shepard, 544 U.S. at 17.
B.
Under the modified categorical approach, we review the
record of conviction to determine whether the crime of which
Prudencio was convicted qualifies as a crime involving moral
turpitude. See Taylor, 495 U.S. at 602. In cases such as the
one before us, in which the conviction at issue was based on
a guilty plea, the record of conviction is composed of the
charging document, the plea agreement, the plea colloquy,
and any explicit findings of fact made by the trial judge. Shep-
ard, 544 U.S. at 15.
Prudencio pleaded guilty to the amended charge of contrib-
uting to the delinquency of a minor, in violation of the delin-
quency statute. The record of conviction does not contain a
plea colloquy or findings of fact by the trial judge, but con-
sists only of a single form entitled "Warrant of
Arrest—Felony." Although this warrant originally charged a
violation of the carnal knowledge statute, the warrant later
was amended to charge a violation of the delinquency statute,
and a handwritten entry on the face of the document shows
that Prudencio pleaded guilty to the amended charge. How-
ever, no other entry on the warrant, the sole document before
us in the record of conviction, provides any information
showing under which subsection of the delinquency statute
Prudencio was convicted.
Although the police report indicated that Prudencio
engaged in consensual sexual intercourse with a minor, that
PRUDENCIO v. HOLDER 21
report may not be considered as part of the record of convic-
tion. See Shepard, 544 U.S. at 20-23. Further, the arrest war-
rant originally alleged a violation to which Prudencio did not
plead guilty. Thus, Prudencio did not admit to any facts apart
from the amended charge stated in the arrest warrant, and any
other factual allegations cannot be attributed to him. See
United States v. Alston, 611 F.3d 219, 227 (4th Cir. 2010).
We find no merit in DHS’s contention that Prudencio has
conceded that he was convicted of a crime involving moral
turpitude, because he did not dispute the immigration judge’s
findings of fact and acknowledged that he initially was
charged with carnal knowledge of a child 13 years of age. The
findings of fact made by the immigration judge may not be
considered under the modified categorical approach, because
those findings were not part of Prudencio’s record of convic-
tion but were derived solely from information acquired under
the third step of the Silva-Trevino procedural framework.
Prudencio’s original charge likewise is irrelevant. The orig-
inal charge on the warrant alleging a violation of the carnal
knowledge statute was superseded once the warrant was
amended to charge a violation of the delinquency statute.
Thus, Prudencio’s acknowledgement before the Board of the
nature of his original charge does not constitute an admission
of any particular conduct.
VI.
In conclusion, we hold that DHS has not satisfied its bur-
den of showing that Prudencio’s 2010 conviction qualified as
a crime involving moral turpitude. We therefore grant the
alien’s petition, vacate the immigration judge’s order of
removal, and enter final judgment in favor of Prudencio.
PETITION GRANTED;
VACATED AND FINAL JUDGMENT
22 PRUDENCIO v. HOLDER
SHEDD, Circuit Judge, dissenting:
The categorical approach adopted by the majority is a doc-
trine created by the judicial branch to address issues of con-
cern to the judicial branch—protection of Sixth Amendment
rights and efficient use of judicial resources. Although an
agency may choose to adopt some version of this approach,
there is no requirement to expand this difficult, almost
unworkable, limiting analysis to an agency, especially in the
immigration context, and I would not do so.
Instead, employing the familiar analysis prescribed by
Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984), I would defer to the Attorney Gen-
eral’s position in Matter of Silva-Trevino, 24 I & N Dec. 687,
688-90 (A.G. 2008). The Chevron analysis, and the deference
it counsels, is particularly applicable in the immigration con-
text. As we have noted, "[i]n considering the Attorney Gener-
al’s interpretation of the [Immigration and Nationality Act],
we are mindful of the fact that ‘the power to expel or include
aliens [is] a fundamental sovereign attribute exercised by the
Government’s political departments largely immune from
judicial control.’"1 The Supreme Court has reminded lower
courts that "it is important to underscore the limited scope of
judicial inquiry into immigration legislation," and that "‘over
no conceivable subject is the legislative power of Congress
more complete than it is over’ the admission of aliens." Fiallo
v. Bell, 430 U.S. 787, 792 (1977) (quoting Oceanic Naviga-
tion Co. v. Stranahan, 214 U.S. 320, 339 (1909)).
1
Blanco de Belbruno v. Ashcroft, 362 F.3d 272, 278 (4th Cir. 2004)
(quoting Fiallo v. Bell, 430 U.S. 787, 792 (1977) (internal quotation marks
omitted)); see also INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999)
(quoting INS v. Abudu, 485 U.S. 95, 110 (1988) ("[J]udicial deference to
the Executive Branch is especially appropriate in the immigration context
where officials ‘exercise especially sensitive political functions that impli-
cate questions of foreign relations.’").
PRUDENCIO v. HOLDER 23
We summarized the broad scope of this deference in
Blanco de Belbruno:
The Attorney General enjoys broad powers with
respect to "the administration and enforcement of
[the INA] and all other laws relating to the immigra-
tion and naturalization of aliens." 8 U.S.C.
§ 1103(a)(1) (2000). The INA empowers the Attor-
ney General to "establish such regulations; . . . issue
such instructions; and perform such other acts as he
deems necessary for carrying out his authority"
under the immigration laws. 8 U.S.C. § 1103(a)(3)
(2000).
Blanco de Belbruno v. Ashcroft, 362 F.3d 272, 279 (4th Cir.
2004).
The immigration context provides the executive with the
broadest discretion to act, but the majority denies them the
slightest discretion to engage in further inquiry in a small
number of cases where the categorical approach does not
yield a definitive answer. Therefore, I respectfully dissent.
I.
Ricardo Prudencio, at the age of 20, had sex with a 13-
year-old girl and infected her with a sexually transmitted dis-
ease. Prudencio pled guilty to one count of contributing to the
delinquency of a minor, in violation of Virginia Code Anno-
tated § 18.2-371. As a legal permanent resident, Prudencio is
subject to removal if he is "convicted of" a "crime involving
moral turpitude." 8 U.S.C. § 1227(a)(2)(A)(i)(I).
In Matter of Silva-Trevino, the Attorney General, con-
cerned with the "patchwork of different approaches across the
nation" courts applied to the moral turpitude provisions, deter-
mined that, in certain limited circumstances, immigration
judges may consider evidence beyond the record of convic-
24 PRUDENCIO v. HOLDER
tion in determining if an alien was convicted of a "crime
involving moral turpitude." 24 I & N Dec. at 688. Using this
approach, the Board of Immigration Appeals (BIA) deter-
mined that Prudencio was convicted of a crime involving
moral turpitude. Specifically, the BIA concluded that Pruden-
cio’s record of conviction was inconclusive as to whether he
was convicted of a crime involving moral turpitude, but that
the immigration judge’s findings of fact—which Prudencio
did not dispute—showed that Prudencio had a sexual encoun-
ter with a "child 13 years of age," and that his conviction was
for a crime involving moral turpitude. (J.A. 107).
In contrast, the majority decides that by using the term
"convicted," Congress unambiguously mandated that courts
apply the "categorical approach" created by the Supreme
Court in Shepard v. United States, 544 U.S. 13 (2005) and
Taylor v. United States, 495 U.S. 575 (1990) for use in
enhancing sentences under the Armed Career Criminal Act.
The majority further concludes that, as a result, immigration
judges are prohibited from looking at evidence beyond the
record of conviction to determine if a conviction was for a
"crime involving moral turpitude." In reaching this conclu-
sion, the majority necessarily declines to defer to Silva-
Trevino.
I disagree with the majority. Like the Seventh Circuit, I
conclude that "when deciding how to classify convictions
under criteria that go beyond the criminal charge-such as . . .
whether the crime is one of ‘moral turpitude,’ the agency has
the discretion to consider evidence beyond the charging
papers and judgment of conviction." Ali v. Mukasey, 521 F.3d
737, 743 (7th Cir. 2008). Moreover, I question the wisdom of
imposing an approach on immigration judges that we have, at
times, proven unable to apply in a workable fashion in the
Armed Career Criminal Act context where it is required. See,
e.g., United States v. Vann, ___ F.3d ___, 2011 WL 4793230,
at *14 (4th Cir. 2011) (Agee, J., concurring).2 As Justice Alito
2
The twelve judges who participated in Vann accounted for a total of six
opinions plus a per curiam opinion announcing the judgment of the court.
PRUDENCIO v. HOLDER 25
has noted, "the ‘categorical approach’ to predicate offenses
has created numerous splits among the lower federal courts,"
and "clarity has been the true inadvertent casualty" of the
approach. Chambers v. United States, 555 U.S. 122, 133
(2009) (Alito, J., concurring).3
At bottom, I find it difficult—if not impossible—to accept
that Congress intended for persons such as Prudencio to
remain in the United States "simply because there might have
been no moral turpitude in the commission by other individu-
als (real or hypothetical) of crimes described by the wording
of the same statute under an identical indictment." Marciano
v. INS, 450 F.2d 1022, 1027 (8th Cir. 1971) (Eisele, J., dis-
senting).
II.
In applying Chevron, we first consider whether "Congress
has directly spoken to the precise question" at issue. Chevron,
467 U.S. at 842. If Congress has so spoken, the inquiry ends
because courts and agencies "must give effect to the unam-
biguously expressed intent of Congress." Id. at 843. If the
statute is silent, however, "agencies [generally] have authority
to fill gaps." Nat’l Cable & Telecomm. Ass’n v. Gulf Power
Co., 534 U.S. 327, 339 (2002). In cases of statutory silence,
we "must defer, under Chevron, to [an agency’s interpretation
of its governing statute], so long as that interpretation is per-
missible in light of the statutory text and reasonable." Ohio
Valley Envtl. Coal. v. Bulen, 429 F.3d 493, 498 (4th Cir.
2005) (internal quotation marks omitted) (emphasis added).
The INA provides several moral turpitude provisions, one
of which is relevant to our case. Section 1227(a)(2)(A)(i)(I)
3
In fact, it was the categorical approach’s uncanny ability to sow confu-
sion and create circuit splits that prompted the Attorney General’s decision
to implement a uniform framework for the moral turpitude provisions in
Silva-Trevino.
26 PRUDENCIO v. HOLDER
provides for the removal of an alien "convicted of" a "crime
involving moral turpitude." In Silva-Trevino, the Attorney
General laid out an in-depth approach to applying the moral
turpitude provisions of the INA in response to the "patch-
work" application of those provisions that the categorical
approach had wrought. Silva-Trevino, 24 I & N Dec. at 688.
As the Attorney General noted, "confusion remains about
what, if anything, may follow such an inquiry where categori-
cal analysis does not resolve the question" of whether an alien
was convicted of a crime involving moral turpitude. Silva-
Trevino, 24 I & N Dec. at 694.4 In an effort to resolve the lack
of uniform treatment of the moral turpitude provisions across
the federal circuits, the Attorney General set forth the follow-
ing test:
First, in evaluating whether an alien’s prior offense
is one that categorically involves moral turpitude,
immigration judges must determine whether there is
a "realistic probability, not a theoretical possibility,"
that the State or Federal criminal statute pursuant to
which the alien was convicted would be applied to
reach conduct that does not involve moral turpitude.
Cf. Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193
(2007).
Second, where this categorical analysis does not
resolve the moral turpitude inquiry in a particular
case, an adjudicator should proceed with a "modified
categorical" inquiry. In so doing, immigration judges
should first examine whether the alien’s record of
conviction—including documents such as the indict-
ment, the judgment of conviction, jury instructions,
4
In determining that the statutory language permitted this approach, the
Attorney General relied on the Seventh Circuit’s opinion in Ali and the
BIA’s opinion in Matter of Babaisakov, 24 I & N Dec. 306 (BIA 2007),
which adopted a circumstance-specific approach to 8 U.S.C.
§ 1101(a)(43)(M)(i).
PRUDENCIO v. HOLDER 27
a signed guilty plea and the plea tran-
script—evidences a crime that in fact involved moral
turpitude. When the record of conviction is inconclu-
sive, judges may, to the extent they deem it neces-
sary and appropriate, consider evidence beyond the
formal record of conviction. The goal of this inquiry
is to discern the nature of the underlying conviction
where a mere examination of the statute itself does
not yield the necessary information; it is not an occa-
sion to relitigate facts or determinations made in the
earlier criminal proceeding.
Id. at 689. Thus, under this approach, the first two steps hew
closely to the Shepard/Taylor categorical and modified cate-
gorical approaches. It is only the third step that moves beyond
the modified categorical approach, permitting immigration
judges to examine additional evidence in cases where the first
two steps fail to provide a definitive answer to the moral tur-
pitude inquiry "if doing so is necessary and appropriate to
ensure proper application of the Act’s moral turpitude provi-
sions." Id. at 699. This language does not create an open-
ended and unworkable approach, but rather limits the immi-
gration judge’s ability to consider additional evidence, prohib-
iting the judge from engaging in fishing expeditions.5
The majority concludes that the term "convicted" unam-
biguously requires the categorical approach and, accordingly,
that there is no gap for the Attorney General to fill. The
majority further concludes that the phrase "crime involving
moral turpitude" does not create any ambiguity because "in-
volving" does not counsel an individualized approach.
I agree with the majority that the term "convicted" is unam-
biguous, but I do not agree that its appearance in a statute
5
In addition to this limitation, the BIA and immigration judges also
would be required to apply "fundamentally fair procedures" in receiving
additional evidence. Nijhawan v. Holder, 129 S.Ct. 2294, 2303 (2009).
28 PRUDENCIO v. HOLDER
unambiguously requires immigration judges to apply the cate-
gorical approach to the moral turpitude provisions. Instead,
the statute is simply silent as to what approach immigration
judges may use in applying the "moral turpitude" provisions.
I would defer to the Attorney General’s opinion in Silva-
Trevino, which represents a measured approach to determin-
ing whether an alien was convicted for a "crime involving
moral turpitude." Several reasons lead me to this conclusion.
First, the bases for applying the categorical approach are
inapplicable in this setting. The Taylor/Shepard approach was
created for application in criminal sentencings "out of desire
for the ‘avoidance of collateral trials,’" or the "specter of
mini-trials," United States v. Dean, 604 F.3d 169, 175 (4th
Cir. 2010) (quoting Shepard, 544 U.S. at 23), and the "alloca-
tion of tasks between judge and jury under the sixth amend-
ment," Ali, 521 F.3d at 741. Of course, "[n]either of these
reasons applies to immigration proceedings." Id. Cf. United
States v. Savillon-Matute, 636 F.3d 119, 123 n.6 (4th Cir.
2011) (noting doubt about continuing vitality of categorical
approach in Sentencing Guidelines for same reasons); Dean,
604 F.3d at 173-74 (noting Shepard’s Sixth Amendment
rationale no longer applicable to advisory Sentencing Guide-
lines). Immigration proceedings are civil, not criminal, thus
negating any Sixth Amendment concerns, "[a]nd how much
time the agency wants to devote to the resolution of particular
issues is, we should suppose, a question for the agency itself
rather than the judiciary." Ali, 521 F.3d at 741. The efficient
operation of the executive branch is simply not the judiciary’s
responsibility. See Vermont Yankee Nuclear Power Corp. v.
Natural Res. Def. Counsel, Inc., 435 U.S. 519, 544 (1978)
("[T]he agency should normally be allowed to exercise its
administrative discretion in deciding how, in light of internal
organization considerations, it may best proceed to develop
the needed evidence.") (internal quotation marks omitted);
Blanco de Belbruno, 362 F.3d at 280 (noting that "how [the
Attorney General] allocates those resources to address the
burden of increasing claims is a calculation that courts should
PRUDENCIO v. HOLDER 29
be loathe to second guess"). Thus, because the bases for Shep-
ard and Taylor are inapplicable in the immigration context, I
do not believe Congress’s use of the term "convicted" neces-
sarily requires the categorical approach.6
Second, I believe recent Supreme Court precedent weakens
the argument that the categorical approach is required for the
moral turpitude provisions. In Nijhawan, the Court was tasked
with answering whether to apply the categorical approach in
the immigration context to determine if a prior conviction was
for "an offense that . . . involves fraud or deceit in which the
loss to the . . . victims exceeds $10,000." 8 U.S.C.
§ 1101(a)(43)(M)(i). The Court began by noting the "interpre-
tive difficulty" the statute posed was due to the fact "that in
ordinary speech words such as ‘crime,’ ‘felony,’ ‘offense,’
and the like sometimes refer to a generic crime, say, the crime
of fraud or theft in general, and sometimes refer to the spe-
6
The majority, and the Third and Eleventh Circuits, in Jean-Louis v.
Attorney General, 582 F.3d 462 (3d Cir. 2009), and Fajardo v. U.S. Atty.
Gen., 659 F.3d 1303 (11th Cir. 2011), also rely on the fact that courts have
long applied what has been called a traditional or categorical approach in
immigration proceedings. Under Nat’l Cable & Telecomm. Ass’n v. Brand
X Internet Servs., 545 U.S. 967 (2005), "[a] court’s prior judicial construc-
tion of a statute trumps an agency construction otherwise entitled to Chev-
ron deference only if the prior court decision holds that its construction
follows from the unambiguous terms of the statute and thus leaves no
room for agency discretion." Id. at 982. In this situation, "that’s not what
[earlier caselaw] say[s]. . . . [It] just carr[ies] over to immigration proceed-
ings an approach familiar to the federal judiciary from criminal prosecu-
tions." Ali, 521 F.3d at 743.
It is somewhat ironic that one of the first reported cases applying the
categorical approach, United States ex rel. Mylius v. Uhl, 210 F. 860 (2d
Cir. 1914), concluded the approach was necessary, in part, to guarantee
the "uniform and efficient administration of the law," id. at 862, and to
prevent the "manifestly unjust" result of "exclud[ing] one person and
admit[ting] another where both were convicted of [the same crime]," id.
at 863. Of course, as the Attorney General recounted in Silva-Trevino, the
categorical approach causes the very problems it supposedly was created
to address.
30 PRUDENCIO v. HOLDER
cific acts in which an offender engaged on a specific occa-
sion." Nijhawan, 129 S.Ct. at 2298. The Court explained that
if the statute referred to a "generic" crime, the categorical
approach was appropriate, but that if the statute was "referring
to the specific way in which an offender committed the crime
on a specific occasion," then the Court "must look to the facts
and circumstances underlying an offender’s conviction." Id. at
2298-99.
The Nijhawan Court ultimately concluded that
§ 1101(a)(43)(M)(i) required a "circumstance-specific"
approach, not the Shepard/Taylor categorical approach. Id. at
2301. The Court found that the use of "in which" counseled
for such an approach and further noted that very few state or
federal statutes specifically have a $10,000 threshold as an
element of the offense, thus distinguishing the provision from
the types of "generic" offenses listed in the ACCA. Id. at
2301-02.
Relying on Nijhawan, both the Fifth Circuit and our own
court recently noted that the categorical approach is not
always required in immigration cases. See Salem v. Holder,
647 F.3d 111, 119 (4th Cir. 2011) (declining to apply categor-
ical approach to an alien’s burden of production and noting
"the Supreme Court has expressed some reservation about a
wholesale adoption of the categorical approach in the immi-
gration context"); Bianco v. Holder, 624 F.3d 265, 272-73
(5th Cir. 2010) (noting that court had previously applied the
categorical approach to the moral turpitude provisions but
nonetheless applying circumstance-specific approach to deter-
mine whether an alien had been "convicted of . . . domestic
violence").
Like the provision at issue in Nijhawan, the moral turpitude
provisions have no analogue in federal or state criminal stat-
utes and "moral turpitude" is not an element of any offense.
In addition, the presence of the word "involving," like the
phrase "in which" at issue in Nijhawan, suggests a more indi-
PRUDENCIO v. HOLDER 31
vidualized approach.7 In sum, "[t]he need to decide whether
a crime is one of ‘moral turpitude’ does not have a parallel in
criminal cases," because "‘moral turpitude’ just isn’t relevant
to the criminal prosecution; it is not as if ‘turpitude’ were an
element of an offense." Ali, 521 F.3d at 741-42.8 In my view,
the phrase "crime involving moral turpitude" "cannot possibly
refer to a generic crime. . . . because there is no such generic
crime." Nijhawan, 129 S.Ct. at 2300-01.
In light of these factors, and with due regard for the level
of deference owed to the Attorney General in immigration
matters, I believe that immigration judges have "the discretion
to consider evidence beyond the charging papers and judg-
ment of conviction" in determining if an alien was convicted
of a crime involving moral turpitude, Ali, 521 F.3d at 743.
Therefore, I would defer to the Attorney General’s approach
in Silva-Trevino. See Mata-Guerrero v. Holder, 627 F.3d 256,
260 (7th Cir. 2010) (deferring to Silva-Trevino).
7
The majority concludes that the word "involving" does not create any
ambiguity in the statute because the entire phrase, "crime involving moral
turpitude" is a term of art. The phrase simply cannot be viewed with such
clarity. See Jordan v. De George, 341 U.S. 223, 235 (1951) (Jackson, J.,
dissenting) ("It is not one which has settled significance from being words
of art in the profession.")
8
For this reason, it is not practical for the majority to suggest that the
burden is somehow on federal and state criminal prosecutors to alleviate
the harshness of the majority’s result by "ensuring that these aspects
appear in the record of conviction." (Majority Op. at 15). Prosecutors have
a difficult enough job, and I do not believe we should add to their burden
by requiring that they ensure certain materials necessary for a civil pro-
ceeding that may (or may not) occur at some indeterminate point in the
future are included in the record of conviction for the convenience of a
court in another jurisdiction and another context. Instead, deferring to rea-
sonable agency procedures to find this needed information provides the
accepted and appropriate manner to address such situations.
32 PRUDENCIO v. HOLDER
III.
Applying Silva-Trevino to this case, I would deny Pruden-
cio’s petition for review. Prudencio pled guilty to one count
of violating Va. Code Ann. §18.2-371, which provides:
Any person 18 years of age or older, including the
parent of any child, who (i) willfully contributes to,
encourages, or causes any act, omission, or condition
which renders a child delinquent, in need of services,
in need of supervision, or abused or neglected as
defined in § 16.1-228, or (ii) engages in consensual
sexual intercourse with a child 15 or older not his
spouse, child, or grandchild, shall be guilty of a
Class 1 misdemeanor.
Subsection (ii) encompasses crimes involving moral turpi-
tude, while subsection (i) does not. The Government intro-
duced the following evidence to prove Prudencio’s
conviction: the police incident report; the warrant for carnal
knowledge, without force, of a 13-year-old child; and the
court form showing Prudencio’s guilty plea to contributing to
the delinquency of a minor. Nothing in these documents con-
clusively shows whether Prudencio pled guilty to subsection
(i) or (ii), so I believe the immigration judge was permitted to
advance to the third step of Silva-Trevino. Applying that step,
the police incident report serves as proof that Prudencio was
convicted of a crime involving moral turpitude: as a 20-year-
old he had sexual intercourse with a 13-year-old, infecting her
with a sexually transmitted disease. Prudencio’s crime is the
kind of "vile" or "depraved" act the moral turpitude provision
was enacted to address.
IV.
In sum, I disagree with the majority that the term "con-
victed" requires unyielding adherence to the categorical
approach to a provision that is not in the Armed Career Crimi-
PRUDENCIO v. HOLDER 33
nal Act and does not list a "generic" offense. Instead, I believe
the statute is silent as to what procedures an immigration
judge may use to determine if an alien was "convicted" of a
"crime involving moral turpitude," and I would defer to the
Attorney General’s approach in Silva-Trevino. In reaching a
contrary conclusion, I believe the majority has operated a sig-
nificant shift in the law by dictating to the executive branch’s
immigration judges how they may use their administrative
resources, and in turn ensuring that some immigrants whose
convictions were for crimes involving moral turpitude—like
Prudencio—remain in the country. It is difficult to believe
that Congress intended for courts to straitjacket immigration
courts with a doctrine based on concerns peculiar to the fed-
eral judiciary to enable individuals who infect underage girls
with sexually transmitted diseases to avoid removal by plead-
ing guilty to an overbroad statute that includes both crimes
involving moral turpitude and crimes that do not. For the fore-
going reasons, I respectfully dissent.