## Facts

- Cristoval Silva-Trevino, a lawful permanent resident and citizen of Mexico, pleaded nolo contendere in Texas in 2004 to indecency with a child by sexual contact under Texas Penal Code § 21.11(a)(1).
- The statute covered sexual contact with a child under 17 who is not the defendant’s spouse and was punishable as a second-degree felony.
- The Department of Homeland Security initiated removal proceedings, charging removability as an aggravated felon under INA § 237(a)(2)(A)(iii).
- The immigration judge ordered removal and treated the conviction as involving moral turpitude, denying discretionary relief sought through adjustment of status under INA § 245(a).
- The Board of Immigration Appeals concluded the conviction was not categorically a crime involving moral turpitude (CIMT), which would have avoided inadmissibility on that ground.
- The Attorney General certified the case for review, vacated the Board’s decision, and remanded.

## Issues

1. What analytical framework governs whether a conviction is for a crime involving moral turpitude under the Immigration and Nationality Act.
2. Under that framework, whether a conviction for indecency with a child by sexual contact under Texas Penal Code § 21.11(a)(1) qualifies as a CIMT.

## Decision

- The Attorney General established a three-step approach for CIMT determinations: (1) categorical inquiry with a realistic-probability test, (2) modified categorical review of the record of conviction if needed, and (3) consideration of additional evidence beyond the record of conviction if the record is inconclusive.
- The Attorney General defined a CIMT as requiring both reprehensible conduct and a culpable mental state (scienter), such as intent, deliberateness, willfulness, or recklessness.
- The Attorney General concluded that intentional sexual contact with a person the defendant knew or should have known was a child may be treated as involving moral turpitude.
- The Attorney General vacated the Board’s contrary determination and remanded for proceedings consistent with the opinion.

## Legal Principles

- CIMT analysis proceeds in three steps: categorical comparison (including a realistic-probability inquiry), modified categorical review of the record of conviction, and, if necessary, consideration of additional evidence to determine the nature of the offense.
- A crime involves moral turpitude only if it combines (1) reprehensible conduct and (2) scienter.
- Sexual offenses involving intentional sexual contact with a minor, with knowledge or constructive knowledge of the victim’s minority, fall within the moral turpitude category under the Attorney General’s formulation.
- When the statute and record of conviction do not resolve the CIMT question, immigration adjudicators may consider evidence outside the record to decide whether the conviction involved moral turpitude.

## Conclusion

The Attorney General replaced the Board’s then-prevailing CIMT methodology with a three-step framework that can extend beyond the record of conviction, clarified that moral turpitude requires both reprehensible conduct and scienter, and treated indecency with a child by sexual contact as conduct that supports a CIMT finding, vacating and remanding the Board’s decision.


Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008)