Matter of Silva-Trevino

Cristoval Silva-Trevino (defendant) was a native and citizen of Mexico who became a permanent resident of the United States in 1962. In 2004, Silva-Trevino entered a plea of no contest to “indecency with a child” under Texas law, a second-degree felony punishable up to 20 years in prison. The Texas law made it a crime for a person to engage in “sexual conduct” with a child under the age of 17. The following year, the Department of Homeland Security initiated removal proceedings against Silva-Trevino on the ground that he had been convicted of an “aggravated felony” under the Immigration and Nationality Act (INA). 8 U.S.C. § 1227(a)(2)(A)(iii). The immigration judge held that Silva-Trevino’s Texas conviction was an “aggravated felony” and ordered him removed to Mexico. As a result of the decision, Silva-Trevino lost his status as a lawful permanent resident of the United States. Silva-Trevino then requested discretionary relief from removal through an adjustment of status under § 245(a) of the INA back to a lawful permanent resident of the United States. Silva-Trevino argued that discretionary relief could be granted because his “aggravated felony” conviction was not a crime involving moral turpitude (CIMT). The immigration judge denied Silva-Trevino’s request. On appeal, the Board of Immigration (BIA) reversed. BIA decisions are binding on immigration judges unless modified or overruled by the Attorney General or a federal court. 8 C.F.R. § 1003.1(h). Attorney General Alberto Gonzales (plaintiff) directed the BIA to refer the matter to him for review.