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Daniel Shanfield
San Jose, California, United States of America
Interests: central asia, latin america, human rights, litigation, immigration law, world politics, asylum and refugee law, criminal law
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Mar 15, 2010
That's a very good question. Silva-Trevino explicitly deals with analyzing crimes involving moral turpitude, and not aggravated felonies. I have heard though of ICE attorneys trying to apply Silva-Trevino to aggravated felony charges. Moreover, other cases, like Matter of Babaisakov, 24 I&N Dec. 306 (BIA 2007), and Nijawhan v. Holder, 129 S.Ct. 2294 (2009), permit the trier of fact to go beyond the record of conviction in certain limited circumstances. For example, Nijhawan permits review of extra-record evidence for state offenses charged under INA s. 101(a)(43)(M)(i) (fraud in excess of $10,000), as the language of the aggravated felony provisions offense invites a "circumstance-specific" approach, rather than a categorical one. We'll see how far the courts are willing to stretch this doctrine.
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