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This past week the Supreme Court held that a noncitizen who is applying for cancellation of removal has the burden to prove that they are eligible for relief. That seems simple enough; why, you might ask, is this case before the Supreme Court? Ahh, well that is where this seemingly anodyne case gets very complicated and interesting. And even more interesting are Justice Gorsuch’s ruminations about immigration court proceedings. (Justice Gorsuch wrote the majority opinion). Clemente Pereida applied for cancellation of removal for non-lawful permanent residents (I am just going to call it cancellation of removal and hope that everyone understands it’s non-lawful permanent resident cancellation of removal). To qualify for cancellation of removal the noncitizen must establish among other things that they haven’t been convicted of an offense under 8 U.S.C. § 1182(a)(2), § 1227(a)(2), or § 1227(a)(3). The question is, how do you determine whether a person has been convicted of an offense under 8 U.S.C. § 1182(a)(2) or § 1227(a)(2)? (We will ignore § 1227(a)(3) which is about failure to register and using false documents because it is not germane to this analysis). How does the immigration court determine whether a person has been convicted of a removable offense? Is it a factual analysis or a legal analysis? And who has the burden of proof? (Spoiler, it’s the noncitizen).
Under immigration law, noncitizens are removable if they have been convicted of certain crimes including crimes involving moral turpitude (CIMTs), controlled substance offenses, firearms offenses, domestic violence offenses, and aggravated felonies. As we all know, immigration law is federal law, and most people are convicted of crimes under state law. There is often a disconnect between the federal and state statutes. How do you determine whether a state crime meets the federal definition of a removable or inadmissible offense? For years we have been using the categorical and the modified categorical approach to make this determination. (I can imagine hundreds of eyeballs glazing over as they see the words “categorical and modified categorical approach” but, really, it’s not that bad). The question is, does the noncitizen have to establish that they weren’t convicted of a removable offense or does the adjudicator have to use the categorical and modified categorical approach to determine whether the crime of conviction is a removable offense? Moreover, what happens when the crime might be a removable offense, but the criminal record is missing, or it is unclear what the person was convicted of? The majority found that it is a simple question of the burden of proof. The noncitizen has the burden to establish that they are eligible for cancellation and they have to establish that they were not convicted of a crime listed under 8 U.S.C. § 1182(a)(2) or § 1227(a)(2).
The Facts of the Case
Clemente Pereida is a citizen of Mexico who has been living in the United States for the past twenty-five years. He, his wife, and their three children live in Nebraska. One child is a U.S. citizen. In 2009 DHS placed Mr. Pereida in removal proceedings. In 2010 he pleaded nolo contendere to Neb. Rev. Stat § 28-608 (2008) since amended and moved to § 28-638 (2020); § 28-201(1)(b) (misdemeanor attempted criminal impersonation). That sounds very scary and very serious. What did he actually do? (I know, I know, it’s not relevant to this analysis, but the gossip in me wants to know). According to Scotusblog, he used a fake social security card to get a job at a cleaning company. The court fined him $100.00 for this offense and he served no jail time. In other words, Mr. Pereida used a fake social security card for the privilege of cleaning toilets. That was his crime.
LEGAL ANALYSIS
Statutes at Issue
To understand this case, it is important to read the statutes. The criminal statute at issue provides that a person violates this statute if they:
“(a) Assumes a false identity and does an act in his or her assumed character with intent to gain a pecuniary benefit . . . or to deceive or harm another;
(b) Pretends to be a representative of some person or organization and does an act in his or her pretended capacity with the intent to gain a pecuniary benefit . . . and to deceive or harm another;
(c) Carries on any profession, business, or any other occupation without a license, certificate, or other authorization required by law; or
(d) Without the authorization . . . of another and with the intent to deceive or harm another: (i) Obtains or records . . . personal identifying information; and (ii) Accesses or attempts to access the financial resources of another through the use of . . . personal identifying information for the purpose of obtaining credit, money . . . or any other thing of value.”
Neb. Rev. Stat § 28-608 and § 28-201(1)(b). Two things stand out about this statute. First, it appears to be divisible. There appear to be four separate offenses with separate elements. Second, it seems to the casual reader that subsections (b) and (d) of this statute are crimes involving moral turpitude because the minimum conduct includes fraud. But subsections (a) and (c) are different. Subsection (a) would seem to include someone who says they are a manicurist when they are not. Subsection (c) would seem to include someone who does manicures without having a current business license. As an aside, the Supreme Court noted that Mr. Pereida never challenged whether the term “crime involving moral turpitude” was unconstitutionally vague and so the Supreme Court did not address that issue. Pereida v. Wilkinson, No. 19-438 slip op. at *4 (March 4, 2021).
The second statute at issue is the immigration statute. Cancellation of removal for non-lawful permanent residents provides that a noncitizen may be granted relief in an exercise of discretion if they meet the four following criteria:
- The noncitizen has been physically present in the United States for a continuous period of not less than ten years immediately preceding the date of such application.
- The noncitizen has been a person of good moral character during such period.
- The noncitizen has not been convicted of an offense under section 8 U.S.C. § 1182(a)(2), 8 U.S.C. § 1227(a)(2), or 8 U.S.C. § 1227(a)(3).
- The noncitizen establishes that removal would result in exceptional and extremely unusual hardship to the noncitizen’s U.S. citizen or lawful permanent resident parent, spouse, or child.
Lower Court and Administrative Court Proceedings
The Immigration Judge (IJ) found that because Mr. Pereida had been convicted of Neb. Rev. Stat § 28-608 he was statutorily ineligible for cancellation of removal. The IJ found that the conviction fell under 8 U.S.C. § 1182 (a)(2) and § 1227(a)(2) as a CIMT. The Board of Immigration Appeals (BIA) and the United States Court of Appeals for the Eighth Circuit agreed with the Immigration Judge. They observed that nothing in the record clarified which statutory subsection Mr. Pereida had violated . But Mr. Pereida had the burden of proof and he didn’t prove that he hadn’t been convicted of a CIMT. Because Mr. Pereida couldn’t prove that he hadn’t been convicted of a CIMT, he was ineligible for cancellation of removal.
Legal Background in the Ninth Circuit and Before the Supreme Court
The issue of what happens when a record of conviction is ambiguous, has been floating around the Ninth Circuit since at least 2012. And since this blog focuses on Ninth Circuit law (I mean, come on, it’s called Top of the Ninth) I want to talk about the legal background here. The Ninth Circuit held that where the record of conviction was inconclusive, the noncitizen had the burden to establish that they had not been convicted of an aggravated felony to qualify for cancellation of removal for lawful permanent residents. Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en banc). Then in 2019 the Ninth Circuit in a second en banc decision overruled Young v. Holder. The en banc court held that “under Moncrieffe v. Holder, 569 U.S. 184 (2013), an ambiguous record of conviction does not demonstrate that a petitioner was convicted of a disqualifying federal offense.” Marinelarena v. Barr, 930 F.3d 1039, 1041 (9th Cir. 2019) (en banc). Marinelarena held that if a noncitizen is applying for cancellation of removal and they have been convicted of a crime, the issue before the immigration court is not a factual issue about the burden of proof. Rather, the proper analysis is whether under the categorical and modified categorical approach the noncitizen was convicted of an offense that renders them ineligible for either LPR or non-LPR cancellation of removal. It was a glorious two years in the Ninth Circuit.
Categorical and Modified Categorical Approach
Categorical Approach
Once again, I am envisioning hundreds of eyeballs glazing over as they read the words “categorical and modified categorical approach.” But to understand the deeper implications of this case it is important to understand the analysis. Traditionally, in determining whether a crime is a removable offense, the adjudicator must analyze the case using this approach. If the statute of conviction is not divisible (i.e., there is only one way to commit the crime) then the adjudicator uses the categorical approach. The adjudicator simply looks at the statute of conviction to determine whether the noncitizen has committed a removable offense. The person’s actual behavior is irrelevant. For example, in California a conviction for credit card fraud (Cal. Penal Code § 532a) is categorically a crime involving moral turpitude because the elements of the offense include fraud committed with some form of scienter. Tijani v. Holder, 628 F.3d 1071 (9th Cir. 2010).On the other hand, a conviction for simple battery (Cal. Penal Code § 243) is categorically not a crime involving moral turpitude because the elements of the offense do not include fraud and the minimum conduct does not include base, vile or depraved behavior. Matter of Sanudo, 23 I& Dec. 968 (BIA 2006) (the minimum conduct for battery is an intentional touching without consent).It’s simple.
Modified Categorical Approach
When a conviction is divisible like the Nebraska statute at issue, then the adjudicator can’t rely on the statute alone to determine whether the crime is a CIMT. The question here, was whether Mr. Pereida was convicted of pretending to be someone else in order to get a pecuniary benefit or to harm someone; or was he conducting a business without a proper license? Both offenses fall under Neb. Rev. Stat. § 28-608; so, which one was it? Under the modified categorical approach, the adjudicator reviews the record of conviction to determine which crime (out of the several potential crimes) is the crime of conviction. Then the adjudicator uses the categorical approach to see if the state crime meets the definition of a federal offense. See, there is no reason for your eyes to glaze over.
The record of conviction is a limited set of documents that includes:
“the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.”
Shepard v. United States, 544 U.S. 13, 26 (2005).In the Ninth Circuit these records also include court minute orders. United States v. Snellenberger, 548 F.3d 699 (9th Cir. 2008) (en banc). Once the adjudicator has reviewed the record of conviction, they can determine which crime the noncitizen was convicted of and whether it is a removable offense. With that background it is time to analyze this decision.
Majority Opinion
Justice Gorsuch wrote the majority opinion joined by Justices Alito, Kavanaugh, Roberts, and Thomas. Justice Gorsuch approached the case as a simple issue of the burden of proof – who has it and did they meet it. Namely Mr. Pereida had been convicted of attempted criminal impersonation and he could not meet his burden to prove that he had not been convicted of subsection (c) of the offense (carrying on a business without a valid license). Because he could not establish that he had not been convicted of a crime listed under 8 U.S.C. § 1182(a)(2) or § 1227(a)(2) he was ineligible for cancellation of removal.
The majority noted that a noncitizen applying for relief from removal has the burden to prove they satisfy the eligibility requirements for relief and to establish that they merit a positive exercise of discretion. 8 U.S.C. § 1229b(c)(4)(A). To carry that burden, the noncitizen must establish that they have not been convicted of a disqualifying crime such as a crime involving moral turpitude. “Thus any lingering uncertainty about whether Mr. Pereida stands convicted of a crime of moral turpitude would appear [to be] enough to defeat his application for relief, exactly as the BIA and the Eighth Circuit hold.” Pereida, slip op. at *5-6. The majority points out that Mr. Pereida agreed that he had the burden of proof related to establishing physical presence, good moral character, and exceptional and extremely unusual hardship to a U.S. citizen or permanent resident family member. The only issue where Mr. Pereida disagreed with the Government was whether he had the burden to establish that he had not been convicted of an offense that statutorily disqualified him from obtaining cancellation or removal. Or was this issue a legal issue for the adjudicator to decide under the categorical and modified categorical analysis?
The majority notes that in removal proceedings the Government has the burden to establish removability. But that burden flips when a noncitizen is seeking an application for relief from removal. 8 U.S.C. § 1229a(c)(3)(4). “Mr. Pereida has offered no account why a rational Congress might wish to place this burden on an alien seeking admission to this country, yet lift it from an alien who has entered this country illegally and is petitioning for relief from a lawful removal order.” Pereida, slip op. at *7. (I find it fascinating that the majority uses the term “alien” to refer to Mr. Pereida, while the dissent uses the term “noncitizen”).
The majority then addresses Mr. Pereida’s argument about the categorical approach. Mr. Pereida argues that his conduct is irrelevant (though here, I believe that Mr. Pereida’s conduct was not egregious and may have helped him obtain relief – but that is not the way this analysis works). What is relevant is whether the statute of conviction includes an element of fraud necessary for a CIMT. The majority then seems to invite Congress to change how the courts adjudicate these cases.
“Nothing requires Congress to employ the categorical approach. Instead of focusing our attention on the question of whether an offense of conviction meets certain criteria, Congress could have (and sometimes has) used statutory language requiring courts to ask whether the defendant’s actual conduct meets certain specified criteria. See e.g. Nijhawan v. Holder, 557 U.S. 29, 41 (2009).”
Pereida, slip op. at *8 n. 2. Wait a minute, let’s read those words again, “Nothing requires Congress to employ the categorical approach?” I think it’s time for a history lesson. Back in 1990, the Supreme Court first introduced the categorical and modified categorical approach to the world in Taylor v. United States, 494 U.S. 575 (1990). The Supreme Court in trying to determine whether a Missouri conviction for burglary triggered the Armed Career Criminal Act (ACCA) (statute enhancements for defendants who had been convicted of certain offenses) determined that it needed to determine first what the generic federal offense was and then compare the state offense to the generic federal offense. Then in 2005,the Supreme Court limited the records the adjudicator could use to determine whether a state offense met the definition of the generic offense. Shepard v. United States, 544 U.S. 13 (2005). Finally, in 2009 the Supreme Court introduced us to the circumstance-specific approach which allows the adjudicator to look at the specific circumstances surrounding the crime when there is no specific generic offense. Nijhawan v. Holder, 557 U.S. 29 (2009). Back to Mr. Pereida. In this case, the Court employs the categorical and modified categorical approach. I find this language puzzling because Congress has not statutorily mandated that adjudicators use the categorical approach in immigration proceedings. Rather, it’s the courts themselves that have designed and adopted this approach. Even so, the Court employs the categorical and modified categorical approach in this analysis. The Court holds that the statute is divisible into four separate crimes. But it finds that Mr. Pereida has not met his burden to establish that he was not convicted of a CIMT. When the record is ambiguous, or where part of the record of conviction is missing, the noncitizen has to establish that they were not convicted of a crime involving moral turpitude. When applying the categorical approach, “the Court has long acknowledged that to ask what crime the defendant was convicted of committing is to ask a question of fact.” Pereida, slip op. at *12.
Here is where the majority’s decision becomes riveting. Mr. Pereida and the dissent both note that criminal records may no longer exist to show exactly what crime defendant was convicted of. There is no statute of limitations in immigration law. For example, a noncitizen can be removed for having been convicted of a crime back in 1950. In California, the clerk of the court may purge most misdemeanor files after five years and most felony files after fifty years. Cal. Government Code § 68152. If a noncitizen has been convicted of misdemeanor in California more than five years ago, it is highly likely that the record simply no longer exists. When the noncitizen has the burden of proof, a missing record may make it impossible for them to prove that they haven’t been convicted of a removable offense.
Justice Gorsuch’s Ruminations
Justice Gorsuch in writing the majority opinion does a lot of ruminating in the last two pages of the decision and I find these ruminations concerning. You might wonder why I am referring to this part of the opinion as “ruminations” rather than as part of a majority opinion by the Supreme Court. It is because no one raised these issues (which are the subject of the ruminations), no one briefed these issues (which are the subject of the ruminations), and at oral argument the Government never advocated for these changes that Justice Gorsuch is suggesting. Pereida, slip op. at *14 (Breyer, J. dissenting). Justice Gorsuch recognizes that under the majority approach a noncitizen might have trouble obtaining records that may no longer exist. But he then points out that Mr. Pereida “may have overlooked some of the tools Congress afforded aliens faced with record keeping challenges.” Pereida, slip op. at *16. I am citing this block quotation because I think everyone should read it.
“In the criminal context, this Court has said that judges seeking to ascertain the defendant’s crime of conviction should refer only to a “limited” set of judicial records. Shepard, 544 U.S., at 20-23. In part, the Court has circumscribed the proof a judge may consult out of concern for the defendant’s Sixth Amendment right to a trial by jury. If a judge, rather than a jury, may take evidence and make findings of fact, the thinking goes, the proceeding should be as confined as possible.*.*.* But Sixth Amendment concerns are not present in the immigration context. And in the INA, Congress has expressly authorized parties to introduce a much broader array of proof when it comes to prior convictions – indicating, for example, that a variety of records and attestations “shall” be taken as proof of a prior conviction. 8 U.S.C. § 1229a(c)(3)(B). Nor is it even clear whether these many forms of proof are meant to be the only permissible ways of proving a conviction, or whether they are simply assured of special treatment when produced.*.*.*. Mr. Pereida acknowledges none of this, again perhaps understandably if further evidence could not have helped his cause. Still, it is notable that Congress took significant steps in the INA to ameliorate some of the record-keeping problems Mr. Pereida discusses by allowing aliens considerably more latitude in carrying their burden of proof than he seems to suppose.”
Pereida, slip op. at *16-17 (internal citations omitted).
One problem with Justice Gorsuch’s ruminations is that this statutory analysis seems to be flat out wrong. Section 1229a(c)(3) is about the burden on the Government in immigration court proceedings. And subsection 1229a(c)(3)(B) delineates what records the Government may submit to establish proof of a conviction. It’s not at all clear that a noncitizen can submit these records under the current law. Moreover, is Justice Gorsuch ruminating that the modified categorical approach no longer applies and that the immigration courts can look at anything? Or is he suggesting that the Government is limited to the Shepard documents while the noncitizen can bring in a “broader array of proof” such as “a variety of records and attestations”? Is Justice Gorsuch contemplating mini trials where the noncitizen can bring in the criminal court judge to testify as to what happened in the case? Is Justice Gorsuch contemplating this vast change in immigration court proceedings without the parties raising these issues, briefing these issues, or even arguing these issues? Well, just wait for Justice Breyer’s dissent!
The Dissent
Justice Breyer wrote the dissent and was joined by Justices Sotomayor and Kagan. Justice Breyer frames this case this way: “This case, in my view, has little or nothing to do with burden of proof. It concerns the application of what we have called the “categorical approach” to determine the nature of a crime that a noncitizen (or defendant) was previously convicted of committing.” Pereida, slip op. at *1 (Breyer, J. dissenting). Justice Breyer finishes the opening paragraph by stating: “The relevant documents in this case do not show that the previous conviction at issue necessarily was for a crime involving moral turpitude. Hence, applying the categorical approach, it was not. That should be the end of the case.” Ibid. Justice Breyer then discusses the history of the categorical and modified categorical approach over the past thirty years and cites Supreme Court cases that have analyzed this issue both in the criminal and in the immigration context.
Justice Breyer then asks the question that every practicing attorney at one point or another asks themselves: “Why would Congress have chosen such a complicated method?” Pereida, slip op. at *7 (Breyer, J. dissenting). (Again, I don’t think the categorical and modified categorical approach are statutorily mandated, rather they seem to be a creature of the common law). Regardless of the origin of this approach, why do use it? Justice Breyer answers his question by noting that the primary reason for this system is practicality. He notes that immigration judges and sentencing judges have limited time to make decisions and that it is important to avoid mini trials. The categorical and modified categorical approach provide a conclusive answer to whether the person was convicted of a removable offense, without resorting to the burden of proof. Pereida, slip op. at *12 (Breyer, J. dissenting).
Breyer’s Counter-Ruminations on Gorsuch’s Ruminations
As I have mentioned, I think the ruminations are the most interesting part of this case. Justice Breyer responds to Justice Gorsuch’s ruminations in the last few pages of the dissent. First, Breyer notes, “[a]s the majority points out, the INA sets for a list of particular materials that, the INA says, “shall constitute proof of the criminal conviction.” 8 U.S.C. § 1229a(c)(3)(B).” Pereida, slip op. at *13 (Breyer, J. dissenting). “The majority also notes that the INA authorizes an immigration judge to make credibility determinations “about a noncitizen’s written and oral proof and determine whether “testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant has satisfied the applicant’s burden of proof.” *.*.*. As the majority concedes, this evidence is broader than what we have permitted in our modified categorical approach cases.” Ibid. But, Justice Breyer points out that Mr. Pereida cannot introduce this evidence because “it goes beyond the limited record our precedents allow.” Ibid. As I said, if you read the statute itself all of these materials are listed as evidence that DHS may produce to establish that the noncitizen is deportable. 8 U.S.C. § 1229a(c)(3) (“[B]urden on service in cases of deportable aliens”). The statute states that the Government may produce these documents – not that the noncitizen may produce them.
Justice Breyer then notes that Justice Gorsuch’s response to this argument is that “there is no limitation on the documents an immigration judge can look at when applying the categorical approach.” Ibid. (emphasis added). Justice Breyer tries to explain Justice Gorsuch’s reasoning: “the limitation was adopted in the criminal context out of a concern for Sixth Amendment rights that is not present in the immigration context. Ibid. That was not, however, our only, or even primary, reason for adopting the limitation. Rather we limited the documents that a judge can review in order “to implement the object of the statute and avoid evidentiary disputes.” Shepard, 544 U.S. at 23, n.4.” Pereida, slip op. at 13-14 (Breyer, J. dissenting). And here is where we learn that Justice Gorsuch spun these ruminations out of thin air.
“At a minimum, I would not hold, in this case, that the categorical approach’s limitation on the documents a judge can consult is inapplicable in immigration proceedings. That argument was neither raised nor briefed by the parties. The Government confirmed several times at oral argument that it had not argued that a judge should be allowed to look at a broader array of evidentiary materials because, in its view, that issue was not implicated since no other documents existed.”
Pereira, slip op. at * 14 (Breyer, J. dissenting). Wait, what??? Justice Gorsuch is effectively talking about eliminating the modified categorical approach in immigration law and replacing it with who knows what (but it appears to be mini trials) and the parties hadn’t raised or briefed this issue? What the??????????????????????? Justice Breyer is more measured than me. “Without the benefit of briefing and argument, we cannot fully anticipate the consequences of today’s decision.” Pereida, slip op. at *15 (Breyer, J. dissenting).
Justice Breyer ends his dissent by pointing out his four concerns with the majority opinion.
- By allowing the parties to introduce a wide range of documentary evidence and testimony to establish the crime of conviction will undermine the judicial and administrative efficiency that the categorical approach is intended to promote.
- This decision makes the administration of immigration law less fair and less predictable. One benefit of the categorical approach is that it enables defendants to anticipate the immigration consequences of guilty pleas in immigration court. But if the noncitizen pleads to a divisible offense and it is not clear which crime they pleaded to and the record is missing they will be unable to obtain cancellation of removal.
- The noncitizen’s eligibility for relief from removal hinges on the varied charging practices of state prosecutors. If a prosecutor mistakes a divisible statute for an indivisible one, they might not identify which offense was the basis for the charge.
- Cancellation of removal is a discretionary form of relief. When a conviction does not disqualify a noncitizen from relief, the Government can still deny the noncitizen relief in an exercise of discretion.
Justice Breyer ends his dissent by noting that the Court should have used the categorical and modified categorical approach to determine whether the underlying offense was a CIMT.
Conclusion
When a noncitizen is applying for cancellation of removal it is now very clear that they must establish that the crime they were convicted of isn’t a ground of inadmissibility or deportability under 8 U.S.C. § 1182(a)(2) or § 1227(a)(2). The categorical and modified categorical approach does not apply to this analysis. Instead, it is a burden of proof issue. To protect our clients, I recommend that attorneys keep scanned copies of criminal records for their immigration clients indefinitely. (Fortunately, storage is cheap). We just don’t know when our clients might need them.
