CA9 on Silva-Trevino: Olivas-Motta v. Holder (REVISED)

CA9 on Silva-Trevino: Olivas-Motta v. Holder (REVISED)

"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 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 Silva-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 Silva-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." - Olivas-Motta v. Holder, May 17, 2013.  [Hats way off to Kara L. Hartzler (argued), {now with the Federal Defenders of San Diego, Inc.}, for Petitioner, Peter L. Markowitz, Benjamin N. Cardozo School of Law Immigration Justice Clinic, New York, New York, for Amici Curiae Immigrant Defense Project, National Immigration Project of the National Lawyers Guild, Immigrant Legal Resource Center, U.C. Davis Immigration Law Clinic, and Immigration Justice Clinic of the Benjamin N. Cardozo School of Law!] - [UPDATE: For reference, here's a link to the underlying unpublished 2010 BIA decision, courtesy of Ben Winograd and the Immigrant & Refugee Appellate Center.]