Under the Immigration and Nationality Act, does a noncitizen’s criminal conviction bar him from seeking relief from removal where his underlying conviction record is only ambiguous as to whether it meets a listed offense?
This case asks the U.S. Supreme Court to clarify the procedure for determining whether a noncitizen who has committed a state-level crime is eligible for cancellation of removal from the United States. The Immigration and Nationality Act of 1940 (“INA”) gives the U.S. Attorney General discretion to cancel a noncitizen’s removal if the noncitizen has not committed a crime involving moral turpitude (“CIMT”). Clemente Avelino Pereida was convicted of a state-level crime under a divisible statute. Three of the four crimes listed within the statute individually constitute CIMTs, but one crime does not. The convicting court did not specify Pereida’s crime of conviction. Pereida contends that he is not required to prove that he did not commit a CIMT and, therefore, that he is eligible for cancellation of removal because his conviction does not necessarily establish that he committed a CIMT. Attorney General William P. Barr counters that the INA requires noncitizens to prove that they did not commit a CIMT in such instances of ambiguity and that Pereida failed to carry his burden of proof. The outcome of this case has important implications for statutory interpretation and the removability of noncitizens who have prior criminal convictions.
Questions as Framed for the Court by the Parties
Whether a criminal conviction bars a noncitizen from applying for relief from removal when the record of conviction is merely ambiguous as to whether it corresponds to an offense listed in the Immigration and Nationality Act.
Clemente Avelino Pereida, (“Pereida”) a Mexican citizen, entered the United States in 1995 without authorization. Pereida v. Barr at 1130. Pereida has remained in the U.S. since then, and he has been steadily employed, paid his taxes, and raised a family. Id.
In July 2009, Nebraska authorities arrested Pereida and charged him with “criminal attempt” in connection with his use of a fraudulent social security card to gain employment, violating Nebraska Revised Statute Section 28-608 (which has since been amended and moved to Section 28-638). Id. Pereida pleaded no contest. Id. Subsequently, on August 3, 2009, the Department of Homeland Security (“DHS”) issued Pereida a Notice to Appear, which charged him with removability because he is an unauthorized immigrant. Id. at 1130. Pereida conceded that he is an unauthorized immigrant, but, in March 2011, he filed an application for cancellation of removal pursuant to 8 U.S.C. § 1229b(b)(1), stating that his removal would impose extreme hardship on his lawfully admitted family. Id.; Brief of Petitioner, Clemente Avelino Pereida at 8.
In August 2014, DHS moved to pretermit Pereida’s cancellation application, arguing that Pereida’s criminal attempt conviction constituted a crime involving moral turpitude (“CIMT”), which automatically made Pereida ineligible for cancellation of removal. Pereida at 1130-31. The Immigration Judge (“IJ”) acknowledged that, categorically, a violation of § 28-608 is not a CIMT because the statute is divisible into four subsections, and it is possible to violate one of the subsections without committing a CIMT. Id. at 1131. However, the IJ concluded that Pereida was convicted under a subsection that necessarily constituted a CIMT because it contained as an element the “intent to defraud or deceive.” Id. Accordingly, the IJ granted DHS’s motion. Id. at 1130.
Pereida appealed the IJ’s decision to the Board of Immigration Appeals (the “BIA”). Id. at 1131. The BIA used a “modified” categorical approach to analyze § 28-608, which permitted the BIA to use certain court documents to ascertain which subsection of the statute Pereida violated. Id. Using this approach, the BIA was unable to determine the subsection. Id. The BIA commented that Pereida had the burden of proving that his conviction was not a CIMT and that, because he failed to carry his burden of proof, he was ineligible for cancellation of removal. Id. Consequently, the BIA affirmed the IJ’s decision. Id. at 1130.
Pereida petitioned the United States Court of Appeals for the Eighth Circuit (the “Eighth Circuit”) to review the BIA’s decision, arguing that his conviction was not a CIMT. Id. at 1131. Like the IJ, the Eighth Circuit determined that § 28-608 was not categorically a CIMT and that the statute was divisible. Id. at 1131-32. The Eighth Circuit then turned to the modified categorical approach, and, like the BIA, was unable to discern “the subsection . . . under which Pereida was convicted.” Id. at 1132. The Eighth Circuit acknowledged that although “Pereida is not to blame for the ambiguity surrounding his criminal conviction,” he still has the burden of proof, which he failed to meet. Id. at 1133. Because the Eighth Circuit could not ascertain which subsection applied, it did not delve into Pereida’s substantive legal arguments and, ultimately, it denied Pereida’s petition for review. Id.
HOW SHOULD COURTS INTERPRET DIVISIBLE STATUTES?
Petitioner Clemente Avelino Pereida (“Pereida”) claims that he is eligible for cancellation of removal because his state-level criminal conviction does not necessarily constitute a crime involving moral turpitude under the Immigration and Nationality Act of 1940 (“INA”). Brief of Petitioner at 15. Pereida maintains that, under the categorical approach to interpreting divisible statutes, the Court must focus on “the legal question of what a conviction necessarily established” (emphasis in original). Id. at 16. Accordingly, Pereida asserts that the Court should presume he committed only the least of the acts that could have led to his conviction under Nebraska Revised Statute § 28-608 to determine if he committed a CIMT. Id. at 16. Here, Pereida argues that his conviction is ambiguous, so it cannot “necessarily” constitute a CIMT. Id. at 18. While CIMTs require a culpable mental state (essentially, a “guilty mind”), Pereida points out that not all the crimes in § 28-608 include a mental state and that the Nebraska state court did not specify whether he was convicted of a crime with a mental state element. Id. Pereida continues that “a conviction under this statute” does not necessarily indicate that he acted with the requisite mental state, so the Court should presume that he did not. Id. Further, Pereida notes that he was charged with all the crimes listed within § 28-608 and pleaded no contest, so he was not convicted of a specific crime. Id. at 18–19. Therefore, based on the categorical approach, Pereida concludes that “the only ‘legal certainty’ about the conviction . . . is that it stands for the ‘minimum conduct criminalized by the state statute,’” which is not a CIMT. Id. at 19.
Pereida acknowledges that the “lease-acts-criminalized” presumption is rebutted if the record of conviction conclusively establishes that he was convicted of a crime listed within § 28-608 that constitutes a CIMT. Id. at 17. Pereida claims, however, that this “modified” categorical approach to analyzing a noncitizen’s conviction under a divisible statute is not meaningfully different from the traditional categorical approach. Id. at 27. Pereida argues that the modified approach can only rebut the least-acts presumption if “the record of conviction of the predicate offense necessarily establishes” the noncitizen’s conviction of a CIMT, so even under the modified approach, an ambiguous conviction still only necessarily establishes the least of the crimes under the state statute. Id. at 28–29. Pereida quotes the Ninth Circuit for the proposition that, because the test relies on necessary conditions, “the documents either show that the [noncitizen] was convicted of a disqualifying offense under the categorical approach, or they do not.” Id. at 29–30.
Respondent Attorney General William P. Barr (“Barr”) argues that Pereida incorrectly applied the categorical approach. Brief of Respondent, Attorney General William P. Barr at 21–23. Barr explains that an indivisible statute “sets out a single . . . set of elements to define a single crime,” whereas a divisible statute defines multiple crimes with multiple elements. Id. at 23–24. The “least-acts” presumption, Barr continues, only applies when courts analyze the specific crime within the divisible statute, not the whole of the divisible statute as the Court must do here. Id. at 32–33. Indeed, Barr explains that a court must undertake two separate steps when analyzing a divisible statute: first, if possible, a court must identify the relevant crime “for which the defendant was convicted,” and second, the court must determine whether that crime is a disqualifying offense. Id. at 33. Barr maintains that the least-acts presumption applies only after the court has identified the relevant crime within the divisible statute. Id. at 34–35. Here, Barr agrees that Pereida’s conviction is ambiguous because it is unclear which crime Pereida was convicted of committing. Id. at 24. Therefore, Barr argues that the Court cannot apply the least-acts presumption to determine whether Pereida’s conviction is a CIMT because it has not yet been determined which crime he was convicted of committing. Id. at 34.
Accordingly, Barr contends that if Pereida cannot prove which part of a divisible statute he was convicted of committing, then the court cannot determine the noncitizen’s eligibility for cancellation of removal by the normal operation of the categorical approach. Id. at 23–24. In situations like this, Barr claims that the “modified” categorical approach is necessary because it allows a court to examine, among other things, “the indictment, jury instructions, or plea agreement and colloquy” to determine which crime the noncitizen was actually convicted of committing. Id. at 24–25. Barr maintains that, if a noncitizen is unable to use this evidence to prove they were not convicted of a disqualifying offense, the noncitizen is ineligible for cancellation of removal. Id. at 26. Barr then explains that the lower courts, all following the modified approach, have found that § 28-608 is divisible, not all crimes within § 28-608 are CIMTs, Pereida has the burden to prove he was not convicted of a CIMT, and Pereida failed to do so. Id. at 28–29. Barr concludes that because the state judge did not clarify which particular state crime Pereida was convicted of and Pereida did not submit evidence to clarify the point, then he is not eligible for cancellation of removal. Id. at 30.
BURDEN OF PROOF
Pereida argues that he does not have the burden of proving his crime of conviction under § 28-608 because a burden of proof resolves questions of fact and not questions of law. Brief of Petitioner at 20. Pereida acknowledges that he has the burden of proof with respect to resolving inquiries like “who did what, when or where, how or why.” Id. at 21–22. Pereida argues that he met this burden in his cancellation of removal application because, among other things, he submitted “hundreds of pages of evidence” showing that he qualified for cancellation of removal. Id. at 22. On the other hand, Pereida argues that when courts apply the categorical approach, they seek to resolve only questions of law, so there are no uncertain facts for Pereida to prove. Id. at 20. Pereida continues that in this case the categorical approach requires the Court to resolve the “binary” legal question of whether his past conviction “necessarily established a disqualifying offense” (internal quotations omitted). Id. at 22. Pereida contends that this is true under the modified-categorical approach as well. Id. at 26. This approach, Pereida maintains, is a tool that helps courts to apply the categorical approach: it permits courts to review the record of conviction to determine whether a conviction is necessarily a disqualifying offense. Id. at 26–27. Crucially, Pereida asserts that this is still a binary legal question that does not involve any factual question triggering Pereida’s burden of proof. Id. at 26.
Barr counters that, to be eligible for cancellation of removal, Pereida has the burden of proving that he did not commit a CIMT. Brief of Respondent at 17–18. Barr claims that the INA places an affirmative obligation on a noncitizen to “prove by a preponderance of the evidence” that the noncitizen is eligible for cancellation of removal. Id. at 19–20. Where multiple grounds exist for denying a cancellation request, Barr notes that the noncitizen must prove that “such grounds do not apply.” Id. at 21. Additionally, Barr points to the cancellation of removal application, which requires an applicant to provide conviction information such as the name of the underlying offense. Id. at 21. Taken together, Barr claims, the INA and relevant regulations demonstrate that Pereida bears the burden of proving he was not convicted of a disqualifying offense. See id. at 18–20. Further, Barr explains that when a statute is divisible, a court may use the modified categorical approach, which requires a noncitizen to supply court documents to prove that the noncitizen’s crime of conviction is not disqualifying. Id. at 25–26. Here, Barr contends that each lower court determined that the crime of conviction is divisible and that some of the crime’s subsections are disqualifying offenses, so, Barr asserts, Pereida must provide evidence that his conviction was not for a disqualifying offense. Id. at 28–29. Ultimately, Barr concludes that Pereida failed to carry his burden of proof. Id. at 26.
Pereida argues that the Eighth Circuit’s holding that Pereida must prove whether he was convicted of a CIMT is wrong as a matter of statutory interpretation. Brief of Petitioner at 37. The text of the INA, Pereida posits, does not indicate that Congress intended to deviate from the categorical approach or its focus on legal, as opposed to factual, analysis. Id. at 37–39. Pereida supports that claim by pointing to other parts of the INA that deal with crimes related to fraud where Congress specifically requires courts to eschew the categorical approach for a fact- and evidence-based approach. Id. at 38. Similarly, Pereida claims that the statutory context supports his position because Congress understood that courts had used the categorical approach for over a century, and that portions of the INA immediately preceding and succeeding the sections at issue here do not use language which requires noncitizens to prove they were not convicted of a CIMT. Id. at 39–41. Likewise, Pereida asserts that Congress has done nothing throughout the INA’s history to change the categorical approach. Id. at 41–42. Therefore, Pereida concludes that his interpretation of the INA and the categorical approach is correct and that he does not have the burden of proving that his crime of conviction is not an offense that would disqualify him for cancellation of removal. Id.
Barr rebuts, claiming that the plain language of the INA places a burden of proof on a noncitizen to prove that the noncitizen was not convicted of a CIMT. Brief of Respondent at 40–41. Pereida’s argument that Congress should have clearly spoken to alter the categorical approach is thus incorrect, according to Barr, because the INA creates a factual, evidence-based test that a noncitizen must follow to prove that the noncitizen was not convicted of a CIMT. Id. at 41. In fact, Barr argues that the sections Pereida cites as evidence of Congress’ intent to eschew factual tests actually places evidentiary burdens on a noncitizen because those sections require the noncitizen to “submit information or documentation in support of [his] application for [cancellation of removal],” which Barr interprets as requiring Pereida to submit evidence that he was not convicted of a CIMT. Id. at 41–43. Finally, Barr claims that Congress previously removed from the INA a noncitizen’s ability to apply for cancellation for removal if the noncitizen was convicted of a CIMT and added language to the INA requiring noncitizens to prove their eligibility for cancellation of removal, and concludes that this statutory history further supports his contention that noncitizens must prove they were not convicted of CIMTs. Id. at 43–45.
FAIRNESS, CONSISTENCY, AND UNIFORMITY
The National Association of Criminal Defense Lawyers (“NACDL”), in support of Pereida, argues that adopting the lower court’s decision will result in unfair and inconsistent outcomes. Brief for the National Association of Criminal Defense Lawyers (“NACDL”), in support of Pereida at 17–19. NACDL explains that state conviction records are “often incomplete, destroyed, or never created,” making it difficult for noncitizens to provide documents to show which specific crime underlies their convictions. Id. at 17. NACDL further contends that this rule harms noncitizens by basing immigration outcomes on the “bureaucratic decisions of county clerks’ offices and the idiosyncrasies of courts’ guilty plea processes.” Id. at 24. A group of former Immigration Judges and members of the Board of Immigration Appeals (the “IJs”) agrees, adding that Pereida’s categorical approach is more straightforward and generates more uniform outcomes because the judge only needs to compare a statute’s elements. Brief of Former Immigration Judges and Members of the Board of Immigration Appeals (“IJs”), in support of Petitioner at 18. The IJs note that this also saves the court significant time and resources as the judges no longer need to make individualized factual decisions nor hear witness testimony. Id. at 19, 23.
Barr counters that the Court should adopt the “modified categorial approach” because it is the more simple, fair, and workable alternative. Brief of Respondent at 45–46. Barr explains that if the necessary documents are lost or never created in the first place, then no matter who carries the burden of proof, the problem of lack of evidence will still exist. Id. at 46. Barr notes that Congress drafted the INA with careful, detailed wording, intending to place the burden of proof on the noncitizen. Id. Switching the burden of proof onto the government, Barr argues, would essentially nullify Congressional intent. Id. at 45. Barr asserts that Pereida has “no valid basis for such overriding of Congress’s considered judgment.” Id. at 46. Finally, Barr points to the limited records that a noncitizen may use to identify the underlying conviction, including indictments and jury instructions. Id. at 10, 45. Barr contends that the use of only these documents avoids “practical difficulties” as it limits the number of records that the noncitizen must produce. See id.
WHO IS BETTER POSITIONED TO CARRY THE BURDEN OF PROOF?
The Immigrant Defense Project (“IDP”), in support of Pereida, argues that the government should have the burden of proof because it is better positioned to produce evidence to determine the crime of conviction. Brief for the Immigrant Defense Project (“IDP”), in support of Petitioner at 10–11. The IDP explains that most noncitizens are unrepresented by counsel, which makes it difficult for these individuals to obtain criminal records. Id. at 11. Additionally, the IDP notes that because approximately 89 percent of noncitizens’ immigration court cases proceed in a language other than English, a significant number of noncitizens may have even greater difficulty in requesting records in their non-native language. Id. at 19. The IDP adds that noncitizens with mental illnesses or other disabilities may also have trouble requesting documents, creating a major problem because each year tens of thousands of noncitizens with mental disabilities face removal. Id. at 20. The IDP continues that Immigration Customs and Enforcement (“ICE”) detains many noncitizens in prison-like conditions where they have limited access to phone, internet, and mail services, which makes it difficult to request prior criminal records. Id. at 14–15. Therefore, the IDP asserts that the government is better positioned to carry the burden of proof, especially because ICE has a multi-billion-dollar budget, over 20,000 employees, and a developed investigative structure. Id. at 22.
Barr counters that noncitizens, instead of the government, are better positioned to meet the burden of proving their crimes of conviction. Brief of Respondent at 46–47. Barr explains that, generally, noncitizens will receive the necessary documents after a conviction in a criminal case. Id. Barr asserts that keeping the burden of proof on noncitizens will incentivize them to produce the necessary documents. Id. Furthermore, in cases where noncitizens know their conviction may have immigration consequences, Barr contends that noncitizens will be even further incentivized to ensure that the relevant records, such as a plea-colloquy transcript, are generated and retained. Id. Switching the burden of proof onto the government, Barr notes, would encourage noncitizens to “withhold and conceal evidence.” Id. at 47. Although Barr concedes that sometimes underlying conviction records are lost at no fault of noncitizens, Barr asserts that Congress still intended to place the burden of proof on noncitizens. Id. He explains that noncitizens should bear the burden in such cases because they are seeking discretionary relief from removal and already have a criminal conviction, so the lack of evidence should not automatically benefit them. See id.
- Andrew R. Arthur, SCOTUS to Consider ‘Burden of Proof’ for Relief Where Crime is in Dispute, Center for Immigration Studies (2019).
- Teresa Schulte, Pereida v. Barr, Willamette University (2019).