## Facts

- Cristoval Silva-Trevino is a native and citizen of Mexico who was admitted to the United States as a lawful permanent resident in 1962.
- In 2004, he pleaded no contest in Texas state court to indecency with a child by contact under Texas Penal Code § 21.11(a)(1), which criminalizes certain “sexual contact” with a child younger than 17.
- The state court accepted the plea and deferred further proceedings, imposed a $250 fine, placed him on five years of community supervision, and required sex-offender counseling.
- Silva-Trevino admitted his offense involved touching (including through clothing), not sexual intercourse.
- In removal proceedings, an immigration judge denied his application for adjustment of status after concluding the Texas conviction was a crime involving moral turpitude (CIMT), making him inadmissible.
- The Board of Immigration Appeals (BIA) affirmed, but the Attorney General later remanded the case to the BIA to set out a uniform CIMT standard after appellate courts rejected an earlier, fact-based method that allowed consideration of evidence outside the record of conviction.

## Issues

1. What legal framework governs whether a conviction is for a CIMT for immigration purposes after the vacatur of the Attorney General’s prior approach?
2. Under that framework, is Texas Penal Code § 21.11(a)(1) categorically a CIMT in the Fifth Circuit?
3. When discretionary relief is sought, does misconduct involving sexual abuse of a minor require a heightened evidentiary showing (such as extraordinary hardship) to merit a favorable exercise of discretion?

## Decision

- The BIA held that CIMT determinations based on convictions are governed by the categorical approach and, when the statute is divisible, the modified categorical approach.
- The BIA held that, unless controlling circuit precedent expressly dictates otherwise, adjudicators should use the realistic probability test when identifying the statute’s minimum conduct for categorical comparison.
- Applying the Fifth Circuit’s “minimum reading” approach, the BIA held that a conviction under Texas Penal Code § 21.11(a)(1) is not categorically a CIMT; therefore, Silva-Trevino was not inadmissible on that ground.
- The BIA held that misconduct involving sexual abuse of a minor does not impose a special, heightened evidentiary or hardship requirement for a favorable discretionary decision; it is considered within ordinary discretionary balancing.
- The BIA remanded for further proceedings consistent with these rulings.

## Legal Principles

- A conviction qualifies as a CIMT only if, under the categorical approach, the statute’s elements necessarily involve morally turpitudinous conduct.
- The modified categorical approach applies only to divisible statutes and permits consultation of a limited set of record-of-conviction documents to identify the elements of the offense of conviction.
- The categorical inquiry focuses on elements and the least culpable conduct that has a realistic probability of being prosecuted under the statute, not on case-specific facts beyond the conviction record.
- Unless the governing federal circuit has a different rule, the realistic probability test requires more than hypothetical minimal conduct; there must be a concrete basis to conclude the jurisdiction actually prosecutes the asserted non-turpitudinous conduct.
- When circuit precedent controls the CIMT analysis (including how to determine minimum conduct), immigration adjudicators must follow that circuit’s approach.
- In discretionary adjudications, sexual-abuse-of-a-minor conduct is a serious adverse factor, but it does not create an extra-statutory requirement that an applicant show extraordinary equities or meet a heightened hardship standard.

## Conclusion

In re Silva-Trevino (2016) set the BIA’s post-remand CIMT framework by limiting conviction-based CIMT analysis to the categorical and modified categorical approaches, generally requiring a realistic probability showing when defining minimum conduct, concluding—under Fifth Circuit “minimum reading” precedent—that Texas Penal Code § 21.11(a)(1) is not categorically a CIMT, and rejecting any heightened evidentiary burden for favorable discretion in cases involving sexual abuse of a minor, while remanding for further consideration of relief under ordinary discretionary standards.


In re Silva-Trevino, 26 I. & N. Dec. 826 (2016)