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Matthew Kolken on Deportation And Removal

Third Circuit Rejects Attorney General Decision

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The United States Court of Appeals for the Third Circuit in Jean-Louis v. Attorney General, No. 07-3311, slip op. (3d Cir. Oct. 6, 2009), dealt with the issue of whether under Pennsylvania law simple assault, when the victim was under 12 years of age, and the assailant was over 20 years of age, is a crime involving moral turpitude. See 18 lace w:st="on">Pa.lace> Cons. Stat. § 2701(b)(2).



In deciding the issue the Court was required to address a recent opinion of the United States Attorney General, Matter of Silva-Treviño, 24 I&N Dec. 687 (A.G. 2008), that adopted a standard for determining whether a particular crime should be designated as a crime involving moral turpitude ("CIMT"), thereby having immigration consequences.



The Third Circuit rejected the Attorney General's approach as set forth in Silva-Treviño and instead applied the conventional modified categorical approach to determine whether Jean-Louis's conviction was an offense that constitutes a CIMT.  



The modified categorical approach enables a Court to look to the record of conviction in the limited circumstance where there is multiplicity in an underlying criminal statute that an individual has been convicted under, and where the minimal conduct contemplated to substantiate a conviction under separate parts of the statute may or may not necessarily involve acts that involve moral turpitude.  In this limited situation a Court may look to the facts of the case in an effort to determine what portion of a criminal statue an individual was found guilty under if there is ambiguity. 



Once this determination is made, the Court must then turn away from the record of conviction, thereby precluding the Court from entertaining an analysis of the particular facts of the case that resulted in a conviction, and must only categorically analyze the specific subsection of a criminal statute to determine if it necessarily involves moral turpitude.



The Third concluded that Jean-Louis was not convicted of a CIMT, thereby discarding the "realistic probability test"recently adopted by the Attorney General in Silva-Treviño when rendering its decision ruling that "[b]ecause the INA requires the conviction of a crime--not the commission of an act--involving moral turpitude, the central inquiry is whether moral depravity inheres in the crime or its elements--not the alien's underlying conduct."



Score one for immigrant rights.

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