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Attorney General Eric Holder

Who says that the Department of Justice can not take a hint?  Last week, Attorney General Eric Holder formally undid one of the worst legacies of the Bush administration’s immigration policy when he withdrew Attorney General Mukasey’s decision in Matter of Silva-Trevino.  In Matter of Silva-Trevino, Attorney General Mukasey determined that immigration judges could take “facts” into account in determining an individual’s exportability even if those facts were never proven in a criminal proceeding.  Mukasey’s decision turned immigration jurisprudence on its head and

Former AG Michael Mukasey

reversed decades of established law that deportability can only be established based upon the precise statute that an individual was convicted of.  This rule, known as the categorical approach prevented the immigration courts from turning into a place where people and the government could re-litigate guilty or innocence in a criminal case.  The categorical approach relied upon the

nature of the offense and the specifics of the plea or finding of guilty.  However, under Silva-Trevino, the Attorney General allowed the introduction of extraneous evidence not found at trial to demonstrate that an offense was a deportable one.

The immigration bar swung into action, objecting to the introduction of non-record evidence in removal proceedings, making motions and taking appeals.  Eventually, the U.S. Courts of Appeals began hearing cases about the use of non-record evidence in removal proceedings.  Five Courts of Appeals determined that the approach outlined by Attorney General Mukasey in Silva-Trevino was wrong.  One Court of Appeals (the 8th Circuit) deferred to the Attorney General’s determination and another, the Seventh, which had issued the decision that gave an underpinning for Silva-Trevino, applauded the Attorney General’s adoption of its rule.

Given its overwhelming rejection by the Courts, Silva-Trevino lost much of its force over the last seven years since Attorney General Mukasey left it as his going-away present.  However, the formal renunciation of Silva-Trevino ends a chapter where uncertainty prevailed over much of the legal framework for deciding when an offense is a deportable one.  This reversal is a welcome shift from an administration that has all too often failed to live up to its promise.