The Undoing of an Attorney General Order

By Dan Cadman on April 20, 2015

With the stroke of a pen in what might be one of his last acts as attorney general (AG), Eric Holder earlier this month undid an order developed by one prior attorney general and signed by another.

That the Immigrant Defense Project immediately lauded the move tells you something about which direction Holder's vacated decision ran. And it once again proves the jaded saw cited by many immigration agents: "No case is over until the alien wins."

The details are a bit complex, but what it comes down to is this: A fine fellow named Cristoval Silva-Trevino was convicted in Texas of indecency with a child. This happened way back in 2006. He was taken into custody by ICE agents for removal proceedings, ordered removed as an alien convicted of a "crime involving moral turpitude" (i.e., moral depravity, usually known simply by the acronym "CIMT"), but on his appeal to the Board of Immigration Appeals, the order was reversed — the Texas law under which he was convicted has several provisions, some of which don't seem to involve CIMTs. Because his conviction documents did not distinguish any further than the statute as a whole, the BIA in its wisdom decided that conviction for a CIMT couldn't be proved and reversed the removal order.

Then-AG Alberto Gonzales was so dissatisfied with such a result that an order was drafted vacating the BIA's decision and directing that in the future immigration officials and judges should look behind the bare conviction documents, for instance at police or pre-sentencing reports, to determine whether the crime did involve turpitude. Gonzales left office before signing the order, but his successor Michael Mukasey finished the job. The AG directive seems to many people, certainly including me, to be woven of the cloth of solid common-sense, but the years rolled by and Silva-Trevino's case wound through the federal court system, where the Fifth Circuit Court of Appeals finally decided in his favor, for precisely the same reason the BIA did, ruling that the law did not permit examination of additional documents to discern the nature of the crime — giving real meaning to Mr. Bumble's remark in Oliver Twist that, "If the law supposes that, then the law is a ass."

Meantime, other federal appellate courts split on whether or not such examinations were permitted, meaning that whether or not an alien would be ordered removed would depend on where his case was heard. While this in itself is a logic-bender, it is not unusual — it is the way the judicial system works in virtually every matter, unless or until a Supreme Court decision is rendered that heals the rift.

But Holder has altered that state of affairs by vacating Mukasey's decision, allegedly to promote uniformity of decision-making in immigration removal cases. The public may not rest easier now, but alien child molesters certainly can.

Keep in mind that Holder's action also means that aliens who have been convicted of "murky" offenses where CIMT can't be established by the mere conviction document will also be entitled to a host of immigration benefits that otherwise would be denied. So they not only won't be deported, many may actually benefit by getting green cards.

Holder's precipitate action is the equivalent of taking an important finger out of the dike of community safety. Any resolution to this deplorable state of affairs will now have to be undertaken by Congress adopting a legal amendment to permit this important examination of supplementary documents when trying to discern if a crime involved depravity.

There is such a bill, and it is one of three important pieces of immigration legislation already passed by the House of Representatives Committee on the Judiciary — the Michael Davis Act, introduced by Rep. Trey Gowdy (R-S.C.). Section 301(a)(4) of the Davis Act would authorize precisely the kind of logical and necessary examination Holder has now forbidden in order to determine when aliens have committed removable CIMT offenses. Let us hope that, in the end, common sense prevails.