11th Circuit Court decides on What Constitutes a Conviction Record
Ever since the U.S. Attorney General's decision, Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008), there has been a legal controversy over what constitutes a "conviction record" for purposes of the deportability of a criminal alien.
Specifically, one common ground of removal is known as "crime involving moral turpitude." However, what conduct the person was convicted for and whether it constitutes "moral turpitude," has traditionally been determined by the immigration court's review of the conviction record, i.e. judgment of the criminal court, charging document and the plea and sentencing reports.
The Attorney General, in its decision, Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008), required the immigration courts, in various cases, to go beyond the conviction record and even review the arrest report. This was a significant departure from established precedent. As a result, many circuit courts have rejected the rationale of Matter of Silva-Trevino, and held that the arrest report, which often does not reflect the actual conduct the person is ultimately convicted for, is not determinative of whether a person was convicted for a crime involving moral turpitude.
Now, the 11th Circuit Court (which reviews questions of federal law arising in Florida, Georgia and Alabama), has joined those circuit courts which have limited the review of the conviction record by excluding the arrest report. This decision is noted in Sanchez Fajardo v. U.S. Attorney General, (11th Cir. 2011).
As a result, certain individuals with deportation orders due to the Silva-trevino analysis, may be eligible to reopen their cases.