Written by: JMcKinney
A few weeks ago, we discussed the conspicuous absence of AG Holder from the ongoing Silva-Trevino controversy. Since that time, the BIA has issued another opinion attempting to articulate when it is proper for an IJ to abandon traditional categorical (Step One) and Modified Categorical (Step Two) and resort to Silva-Trevino’s amorphous Step Three.
Removal matters decided solely on Silva-Trevino Step Three continue to make their way to Circuit Court. The issue then becomes whether the agency’s opinion in Silva-Trevino is entitled to any judicial deference, and if so, how much.
AILA, joined by the Immigrant Defense Project, Immigrant Legal Resource Center, National Immigration Project of the National Lawyers’ Guild, and the University of Maryland School of Law Immigration Clinic, filed an Amicus Brief with the 4th Circuit Court of Appeals last week arguing former AG Mukasey’s needless departure from a century of case law in Silva-Trevino is entitled to no deference. In fact, the 4th Circuit observed thirty-five years ago that the focus of the INA “is on the type of crime committed rather than on the factual context surrounding the actual commission of the offense.” Castle v. INS, 541 F.2d 1064, 1066 n. 5 (4th Cir. 1976). There was no ambiguity then (which could make room for reasonable agency interpretation) and there is no ambiguity now. AG Mukasey simply ignored the plain language of the statute, which makes the focus on the criminal conviction, rather than the circumstances surrounding a criminal arrest.
The Waheed brief was assembled and edited by Jeremy McKinney, Maria Andrade, and Russell Abrutyn for AILA and Isaac Wheeler for the Immigrant Defense Project. However, the brief itself is simply the latest rendition of what AILA and other associations have been saying since Silva-Trevino was released in 2008. The original scholarship came from many others who blazed the trail, such as Br. of IDP et al. as Amicus Curiae, Prudencio v Holder, No. 10-2382 (4th Cir. 2011) and Br. of AILA et al. in Support of Motion for Reconsideration, Matter of Silva-Trevino (A.G. 2008). Hopefully, our unified message and team approach to Silva-Trevino litigation will continue to yield results!