Practice Advisory: Silva-Trevino II

On April 10, 2015, U.S. Attorney General Eric Holder signed an order that should be good news for immigrants accused of certain crimes and their criminal defense lawyers: Matter of Silva-Trevino, 26 I. & N. Dec. 550 (A.G. 2015) (Silva-Trevino II). The Attorney General’s order vacates a November 7, 2008 opinion of former Attorney General Michael Mukasey that allowed immigration judges to consider evidence outside the record of conviction in order to determine whether a noncitizen was removable from the United States on the basis of a conviction for a “crime involving moral turpitude.”Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008) (Silva-Trevino I).

Silva-Trevino I had the effect of hampering the ability of defense lawyers to give reliable advice regarding the immigration consequences of a negotiated plea to certain criminal charges, as the opinion allowed a later immigration adjudicator to consider evidence of the underlying facts outside what is established by the criminal disposition and record of conviction.

However, Silva-Trevino II should give defense lawyers enhanced ability to provide reliable advice regarding the immigration consequences of guilty pleas to certain charges, as well as greater ability to limit those consequences by controlling what is in the record of conviction.

IDP, the National Immigration Project of the National Lawyers Guild and the Cardozo School of Law Immigration Justice Clinic have prepared a practice advisory for criminal defense lawyers regarding the Silva-Trevino II order here.