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Prudencio v. Holder, 4th Circuit, January 30, 2012

Prudencio v. Holder, 4th Circuit, January 30, 2012

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Published by Jose C. Pitti
The 4th Circuit overturns Silva-Trevino!
The 4th Circuit overturns Silva-Trevino!

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Published by: Jose C. Pitti on Jan 31, 2012
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01/31/2012

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 
R
ICARDO
A. P
RUDENCIO
,
Petitioner,
v.E
RIC
H. H
OLDER
, J
R
., AttorneyGeneral,
 Respondent.
No. 10-2382
I
MMIGRANT
D
EFENSE
P
ROJECT
;N
ATIONAL
I
MMIGRATION
P
ROJECT OF THE
N
ATIONAL
L
AWYERS
G
UILD
; I
MMIGRANT
L
EGAL
R
ESOURCE
C
ENTER
; K
ATHRYN
O. G
REENBERG
I
MMIGRATION
J
USTICE
C
LINIC OF THE
B
ENJAMIN
N. C
ARDOZO
S
CHOOL OF
L
AW
,
 Amici Supporting Petitioner.
On Petition for Review of anOrder of the Board of Immigration Appeals.Argued: September 21, 2011Decided: January 30, 2012Before TRAXLER, Chief Judge, and SHEDD andKEENAN, Circuit Judges.
Appeal: 10-2382 Document: 39 Date Filed: 01/30/2012 Page: 1 of 33
 
Petition granted; vacated and final judgment by publishedopinion. Judge Keenan wrote the opinion, in which Chief Judge Traxler joined. Judge Shedd wrote a dissenting opinion.
COUNSELARGUED:
Hilario Mercado, Jr., MERCADO LAW FIRM,PLC, Falls Church, Virginia, for Petitioner. Jesse MatthewBless, UNITED STATES DEPARTMENT OF JUSTICE,Washington, D.C., for Respondent.
ON BRIEF:
Tony West,Assistant Attorney General, Civil Division, Jennifer Paisner-Williams, Senior Litigation Counsel, Office of ImmigrationLitigation, UNITED STATES DEPARTMENT OF JUSTICE,Washington, D.C., for Respondent. Peter L. Markowitz, BEN-JAMIN N. CARDOZO SCHOOL OF LAW, New York, NewYork, for Amici Supporting Petitioner.
OPINION
BARBARA MILANO KEENAN, Circuit Judge:Ricardo A. Prudencio is a native and citizen of El Salvadorwho has been granted lawful permanent resident alien statusin the United States. He petitions this Court for review of adecision of the Board of Immigration Appeals (the Board), inwhich the Board dismissed his appeal from an immigration judge’s decision classifying him as an alien subject toremoval under section 237(a)(2)(A)(i) of the Immigration andNationality Act (INA), 8 U.S.C. § 1227(a)(2)(A)(i).The order of removal was based on the immigration judge’sdetermination that Prudencio previously had been convictedof a crime involving moral turpitude. In making this determi-nation, the immigration judge considered informationobtained using the three-step procedural framework estab-
2P
RUDENCIO
v. H
OLDER
Appeal: 10-2382 Document: 39 Date Filed: 01/30/2012 Page: 2 of 33
 
lished by the Attorney General in
 Matter of Silva-Trevino
, 24I&N Dec. 687 (A.G. 2008). Because we conclude that themoral turpitude provisions of the INA are not ambiguous anddo not contain any gap requiring agency clarification, we holdthat the procedural framework established in
Silva-Trevino
was not an authorized exercise of the Attorney General’sauthority under
Chevron, U.S.A., Inc. v. Natural Resources Defense Council
, 467 U.S. 837 (1984). Accordingly, we grantPrudencio’s petition and vacate the Board’s decision and theorder providing for Prudencio’s removal.I.Before the decision in
Silva-Trevino
, the majority of oursister circuits applied the categorical and modified categoricalapproaches set forth in
Taylor v. United States
, 495 U.S. 575(1990), and
Shepard v. United States
, 544 U.S. 13 (2005), indetermining whether an alien’s prior conviction qualified asa crime involving moral turpitude under the INA. The Attor-ney General purported to alter application of these traditionalapproaches in
Silva-Trevino
. Primarily, the Attorney Generalconcluded that if, after application of the categorical and mod-ified categorical approaches, an alien’s record of convictionstill is inconclusive, immigration judges should engage in anadditional third step of analysis and "consider any additionalevidence the adjudicator determines is necessary or appropri-ate" to resolve whether the alien was convicted of a crimeinvolving moral turpitude. 24 I&N Dec. at 704.II.Prudencio was accorded lawful permanent resident alienstatus in September 2005. In October 2009, he was chargedin Prince William County, Virginia, with a violation of Vir-ginia Code § 18.2-63 for the carnal knowledge, without theuse of force, of a 13-year-old child (the carnal knowledgestatute). In March 2010, in the Prince William County Juve-nile and Domestic Relations District Court, Prudencio pleaded
3P
RUDENCIO
v. H
OLDER
Appeal: 10-2382 Document: 39 Date Filed: 01/30/2012 Page: 3 of 33

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