On January 22, 2010 American Bar Association President Carolyn B. Lamm urged U.S. Attorney General Eric H. Holder Jr. to maintain the categorical approach to determine the immigration consequences of criminal convictions.
She explained that in removal proceedings, immigration judges are routinely called on to make determinations about how to classify a past conviction. Under the categorical approach for doing this, immigration adjudicators rely on the criminal statute and the record of conviction rather than conducting a new factual inquiry into the basis for the conviction.
The decision in Matter of Silva-Trevino transforms this legal determination into a re-trial of the criminal case requiring de novo fact finding on the conduct underlying the criminal court conviction, but without the due process protection integral to criminal trials. The Board of Immigration Appeals has cut back on the categorical approach in cases involving classification of crimes as meeting the "aggravated felony" ground for deportation.
"The categorical approach provides uniformity and predictability while Silva-Trevino creates uncertain consequences that will disrupt plea negotiation and the settled expectations of criminal defendants, courts and prosecutors," she wrote. "It is fundamentally unfair to force immigrants to relitigate their criminal cases in immigration court hearings that are not governed by formal rules of evidence, where the Sixth Amendment right to appointed counsel and to a trial by jury do not apply, and where the Fourth Amendment exclusionary rule and Fifth Amendment privilege against self-incrimination do not apply with full force." Lamm concluded.