The Board of Immigration Appeals (Board) has issued a new decision in Matter of Silva Trevino, dictating how Immigration Judges should analyze whether convictions qualify as crimes involving moral turpitude. The Board acknowledged that this analysis is governed by the categorical and modified categorical approaches, including the Supreme Court's decisions in Descamps v. US and Mathis v. US for determining what constitutes a divisible statute. The Board also noted that a crime involving moral turpitude is generally conduct that is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.
With this framework in mind, the Board determined that Texas Penal Code section 21.11(a)(1) (indecency with a child) is not a crime involving moral turpitude because it does not require a defendant to know that the victim is under age 17. Moreover, the parties agreed that the statute is not divisible, and therefore, no modified categorical analysis was necessary.
Finally, the Board declined to extend the heightened discretionary standard for individuals convicted of violent or dangerous crimes - currently applied via regulation to waivers of inadmissibility under section 212(h) of the INA - to other forms of discretionary relief. The Board noted that its current case law already allows a judge to balance the severity of a crime against equities when determining whether to grant discretionary relief (i.e. adjustment of status) to an applicant. Ninth Circuit practitioners can use this decision to roll back the decision in Torres-Valdivias v. Lynch (9th Cir. 2015), which applied the heightened discretionary standard to all forms of discretionary relief (including adjustment of status without a waiver).
The full text of Matter of Silva Trevino can be found here: