Cases & Deals

Immigration client successfully petitions Fifth Circuit to review BIA decision

Clients Miller, Nicola Ovesha

On February 14, 2014, the Fifth Circuit granted Jones Day immigration client Nicola Miller’s petition for review and vacated a decision ordering Ms. Miller removed.

In 2008, Attorney General Mukasey issued an opinion in Matter of Silva-Trevino, departing from nearly a century of agency and judicial precedent on the classification of crimes involving moral turpitude and proposing that immigration judges be allowed to look beyond a petitioner’s record of conviction to determine whether a prior conviction amounts to one involving moral turpitude. In Ms. Miller’s case, the immigration judge adopted the Attorney General’s approach rather than following Fifth Circuit precedent restricting the moral turpitude analysis to a categorical review of the statute and record of conviction. Having concluded that Ms. Miller had twice been convicted of a crime involving moral turpitude, the immigration judge ordered that Ms. Miller be removed, and the Board of Immigration Appeals affirmed.

Jones Day represented Ms. Miller in her appeal of the BIA’s decision, arguing that the Silva-Trevino framework, insofar as it permits the extrinsic examination of materials beyond a petitioner’s record of conviction, conflicts with the language of the Immigration and Nationality Act. In January 2014, the Fifth Circuit vacated the BIA’s decision in Silva-Trevino, holding that the Fifth Circuit's precedent on the issue does not permit an inquiry beyond the record of conviction. In Ms. Miller’s case, the court agreed with Jones Day’s analysis and held that the BIA had erred in examining a police report in reaching its decision on removability. The court granted Ms. Miller’s petition, vacated the BIA’s decision, and remanded for further proceedings.

Miller v. Holder, No. 11-60682 (5th Cir. 2014)