Petitioners Brief — Clemente Avelino Pereida, Petitioner v. Robert M. Wilkinson, Acting Attorney General
Supreme Court briefJan 28, 2020
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No. 19-438
IN THE
Supreme Court of the United States
_________________________________
CLEMENTE AVELINO PEREIDA,
v.
Petitioner,
WILLIAM P. BARR, ATTORNEY GENERAL,
Respondent.
_________________________________
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE EIGHTH CIRCUIT
_________________________________
BRIEF FOR PETITIONER
_________________________________
David V. Chipman
Raul F. Guerra
MONZÓN, GUERRA &
ASSOCIATES
1133 H Street
Lincoln, NE 68508
Thomas M. Bondy
Benjamin P. Chagnon
Monica Haymond
ORRICK, HERRINGTON &
SUTCLIFFE LLP
1152 15th Street NW
Washington, DC 20005
Brian P. Goldman
Counsel of Record
Thomas King-Sun Fu
Kory DeClark
ORRICK, HERRINGTON &
SUTCLIFFE LLP
405 Howard Street
San Francisco, CA 94105
(415) 773-5700
brian.goldman@orrick.com
E. Joshua Rosenkranz
ORRICK, HERRINGTON &
SUTCLIFFE LLP
51 West 52nd Street
New York, NY 10019
Counsel for Petitioner
i
QUESTION PRESENTED
A noncitizen may not apply for relief from removal
if he has been convicted of a disqualifying offense
listed in the Immigration and Nationality Act. The
categorical approach (including its “modified” variant) governs the analysis of potentially disqualifying
convictions. Under that approach, a conviction for a
state offense does not carry immigration consequences unless the “conviction necessarily establishe[s]” all elements of the potentially corresponding
federal offense. Mellouli v. Lynch, 135 S. Ct. 1980,
1987 (2015).
The question presented is:
Whether a criminal conviction bars a noncitizen
from applying for relief from removal when state
criminal records are merely ambiguous as to whether
the conviction corresponds to an offense listed in the
Immigration and Nationality Act.
ii
TABLE OF CONTENTS
Page
QUESTION PRESENTED ........................................ i
TABLE OF AUTHORITIES .................................... iv
OPINIONS BELOW .................................................. 1
JURISDICTION ........................................................ 1
STATUTORY PROVISIONS INVOLVED ............... 1
STATEMENT ............................................................ 1
A. The Immigration and Nationality Act
and the Categorical Approach ...................... 1
B. Factual Background ...................................... 6
C. Proceedings Below ........................................ 8
SUMMARY OF ARGUMENT................................. 11
ARGUMENT ........................................................... 15
I.
A Merely Ambiguous Conviction Does Not
Trigger Immigration Consequences Under
The Categorical Approach. ............................... 15
A. A conviction is not disqualifying unless
the record of conviction “necessarily”
establishes all the elements of a
corresponding federal offense. .................... 16
B. Mr. Pereida’s conviction is ambiguous,
so it does not “necessarily” establish a
disqualifying crime involving moral
turpitude. ..................................................... 18
II. The INA’s Burden Of Proof Provisions Do
Not Bear On The Categorical Analysis. .......... 19
iii
A. Burdens of proof do not affect the
operation of the categorical approach. ....... 20
1. Burdens of proof resolve uncertain
factual questions only. ........................... 20
2. The categorical approach involves
no uncertain question of fact, which
is why burdens of proof have not
played a role in this Court’s cases. ........ 22
B. Applying the categorical approach to a
divisible statute does not depend on
any burden of proof either. ......................... 26
1. The modified categorical approach
answers the same binary question
as the categorical approach. .................. 27
2. The modified categorical inquiry is
not a “factual” one. ................................. 32
C. The text, context, and history of
§ 1229a(c)(4)(A) do not support the
Eighth Circuit’s contrary
interpretation. ............................................. 37
D. The Eighth Circuit’s inversion of the
categorical approach would produce
grave practical difficulties. ......................... 43
CONCLUSION ........................................................ 50
APPENDIX A
Record of Nebraska
Conviction ..................................... 1a
APPENDIX B
Statutory and Regulatory
Provisions ................................... 10a
iv
TABLE OF AUTHORITIES
Page(s)
Cases
Alleyne v. United States,
570 U.S. 99 (2013) ................................................24
Almanza-Arenas v. Lynch,
815 F.3d 469 (9th Cir. 2016)................................29
Batrez Gradiz v. Gonzales,
490 F.3d 1206 (10th Cir. 2007)............................36
Carachuri-Rosendo v. Holder,
560 U.S. 563 (2010) .................................. 24, 25, 50
Converse, Inc. v. ITC,
909 F.3d 1110 (Fed. Cir. 2018) ............................30
Cornejo-Villagrana v. Whitaker,
912 F.3d 479 (9th Cir. 2017)................................36
Descamps v. United States,
570 U.S. 254 (2013) .......... 3, 4, 5, 10, 13, 23, 27, 32
33, 35, 36, 41, 43, 47, 48
Engine Mfrs. Ass’n v. S. Coast Air
Quality Mgmt. Dist.,
541 U.S. 246 (2004) ..............................................20
Esquivel-Quintana v. Sessions,
137 S. Ct. 1562 (2017)....................................17, 28
Flores-Larrazola v. Lynch,
840 F.3d 234 (5th Cir. 2016)................................36
Gordon v. U.S. Att’y Gen.,
861 F.3d 1314 (11th Cir. 2017)............................36
v
United States ex rel. Guarino v. Uhl,
107 F.2d 399 (2d Cir. 1939) .........................4, 5, 17
Hayrapetyan v. Mukasey,
534 F.3d 1330 (10th Cir. 2008)............................31
Henson v. Santander Consumer USA Inc.,
137 S. Ct. 1718 (2017)..........................................39
Hernandez-Zavala v. Lynch,
806 F.3d 259 (4th Cir. 2015)................................38
Jae Lee v. United States,
137 S. Ct. 1958 (2017)..........................................48
Johnson v. United States,
559 U.S. 133 (2010) ............ 5, 15, 18, 28, 29, 44, 48
Jordan v. De George,
341 U.S. 223 (1951) ................................................4
Larios-Reyes v. Lynch,
843 F.3d 146 (4th Cir. 2016)................................36
Latimer v. Roaring Toyz, Inc.,
601 F.3d 1224 (11th Cir. 2010)............................30
Leocal v. Ashcroft,
543 U.S. 1 (2004) ..................................................35
Lopez v. Lynch,
810 F.3d 484 (7th Cir. 2016)................................36
Luna Torres v. Lynch,
136 S. Ct. 1619 (2016)....................................39, 40
Matter of M-,
2 I. & N. Dec. 721 (BIA 1946) ..............................17
Marinelarena v. Barr,
930 F.3d 1039 (9th Cir. 2019)..............................29
vi
Mathis v. United States,
136 S. Ct. 2243 (2016).................................. passim
Medina v. California,
505 U.S. 437 (1992) ..............................................30
Mellouli v. Lynch,
135 S. Ct. 1980 (2015)................ 3, 4, 12, 13, 16, 17
20, 22, 23, 43, 46, 47
Merck Sharp & Dohme Corp. v. Albrecht,
139 S. Ct. 1668 (2019)..........................................21
Microsoft Corp. v. i4i Ltd. P’ship,
564 U.S. 91 (2011) ................................................21
Moncrieffe v. Holder,
569 U.S. 184 (2013) ...................................... passim
United States ex rel. Mylius v. Uhl,
210 F. 860 (2d Cir. 1914) ........................... 5, 23, 41
Nat’l Liab. & Fire Ins. Co. v. R&R
Marine, Inc.,
756 F.3d 825 (5th Cir. 2014)................................30
Nijhawan v. Holder,
557 U.S. 29 (2009) ................................................38
Olmsted v. Holder,
588 F.3d 556 (8th Cir. 2009)................................36
Matter of Ortega-Lopez,
26 I. & N. Dec. 99 (BIA 2013) ................................4
Matter of P-,
3 I. & N. Dec. 56 (BIA 1947) ................................17
Padilla v. Kentucky,
559 U.S. 356 (2010) ..............................................48
vii
Patel v. Holder,
707 F.3d 77 (1st Cir. 2013) ..................................36
Raja v. Sessions,
900 F.3d 823 (6th Cir. 2018)................................36
United States ex rel. Robinson v. Day,
51 F.2d 1022 (2d Cir. 1931) ...................................5
Matter of S-,
2 I. & N. Dec. 353 (BIA 1945) ................................4
Sanchez-Velasco v. Holder,
593 F.3d 733 (8th Cir. 2010)................................22
Sauceda v. Lynch,
819 F.3d 526 (1st Cir. 2016) ..........................44, 45
Sessions v. Dimaya,
138 S. Ct. 1204 (2018)..........................................35
Shepard v. United States,
544 U.S. 13 (2005) ........ 6, 16, 28, 33, 34, 35, 41, 43
Matter of Silva-Trevino,
26 I. & N. Dec. 550 (AG 2015) ...............................4
Singh v. Att’y Gen.,
839 F.3d 273 (3d Cir. 2016) .................................36
Singh v. Sessions,
898 F.3d 518 (5th Cir. 2018)................................31
Taylor v. United States,
495 U.S. 575 (1990) .................................. 34, 43, 48
Teva Pharm. USA, Inc. v. Sandoz, Inc.,
135 S. Ct. 831 (2015)............................................33
U.S. Bank Nat’l Ass’n v. Village at
Lakeridge, LLC,
138 S. Ct. 960 (2018)................................ 21, 23, 36
viii
United States v. Hayes,
555 U.S. 415 (2009) ..............................................38
United States v. Stitt,
139 S. Ct. 399 (2018)............................................43
Wala v. Mukasey,
511 F.3d 102 (2d Cir. 2007) .................................36
Woodby v. INS,
385 U.S. 276 (1966) ..............................................22
United States ex rel. Zaffarano v. Corsi,
63 F.2d 757 (2d Cir. 1933) ...................................35
Statutes
Immigration and Nationality Act,
8 U.S.C. § 1101 et seq. ............................................1
8 U.S.C. § 1101(a)(42) ..........................................31
8 U.S.C. § 1101(a)(43)(G) .....................................43
8 U.S.C. § 1101(a)(43)(M)(i) .................................38
8 U.S.C. § 1101(a)(43)(P) .....................................38
8 U.S.C. § 1158.......................................................2
8 U.S.C. § 1158(b)(1)(A) .........................................3
8 U.S.C. § 1158(b)(1)(B)(i) .............................31, 42
8 U.S.C. § 1158(b)(1)(B)(iii) .................................42
8 U.S.C. § 1182(a) ..................................................1
8 U.S.C. § 1182(a)(2) ..............................................3
8 U.S.C. § 1182(a)(2)(A)(i)(I)..............................2, 9
8 U.S.C. § 1182(a)(2)(A)(i)(II) ................................2
8 U.S.C. § 1182(a)(6)(A)(i) .....................................2
ix
8 U.S.C. § 1226(c)(1)(B) .......................................46
8 U.S.C. § 1227(a) ..................................................1
8 U.S.C. § 1227(a)(1)(B) .........................................2
8 U.S.C. § 1227(a)(2) ..............................................3
8 U.S.C. § 1227(a)(2)(A)(i) .....................................2
8 U.S.C. § 1227(a)(2)(A)(iii) ...................................2
8 U.S.C. § 1227(a)(2)(B) .........................................2
8 U.S.C. § 1227(a)(2)(E)(i) ...................................38
8 U.S.C. § 1227(a)(3) ..............................................3
8 U.S.C. § 1229.......................................................1
8 U.S.C. § 1229a(a)(2) ............................................1
8 U.S.C. § 1229a(c)(2)(A) .....................................41
8 U.S.C. § 1229a(c)(3) ..........................................40
8 U.S.C. § 1229a(c)(3)(A) .....................................24
8 U.S.C. § 1229a(c)(3)(B) .....................................40
8 U.S.C. § 1229a(c)(3)(C) .....................................40
8 U.S.C. § 1229a(c)(4) .............................. 31, 41, 43
8 U.S.C. § 1229a(c)(4)(A) ... 3, 19, 20, 32, 37, 39, 40
8 U.S.C. § 1229a(c)(4)(A)(i) ..................................37
8 U.S.C. § 1229a(c)(4)(B) ...............................22, 39
8 U.S.C. § 1229a(c)(4)(C) ......................... 39, 40, 42
8 U.S.C. § 1229b(a) ............................................2, 3
8 U.S.C. § 1229b(a)(3) ..........................................44
8 U.S.C. § 1229b(b) ............................................2, 3
x
8 U.S.C. § 1229b(b)(1)(A) .................................2, 22
8 U.S.C. § 1229b(b)(1)(B) .................................2, 22
8 U.S.C. § 1229b(b)(1)(C) ................. 3, 8, 16, 26, 37
8 U.S.C. § 1229b(b)(1)(D) .................................2, 22
8 U.S.C. § 1252(a)(2)(C) .......................................36
8 U.S.C. § 1252(a)(2)(D) .......................................36
8 U.S.C. § 1252(b)(4)(B) .......................................36
8 U.S.C. § 1326(b) ................................................35
8 U.S.C. § 1481(a) ................................................31
8 U.S.C. § 1481(b) ................................................31
15 U.S.C. § 1057(b)....................................................30
17 U.S.C. § 410(c) ......................................................30
18 U.S.C. § 921(a)(33)(A) ..........................................39
18 U.S.C. § 924(e) ......................................................16
28 U.S.C. § 1254(1)......................................................1
Act of Mar. 3, 1891, ch. 551, 26 Stat. 1084 ..............41
REAL ID Act of 2005, Pub. L. No. 10913, Div. B, 119 Stat. 231 .......................... 31, 39, 41
Neb. Rev. Stat. § 28-201 (2008) ..................................7
Neb. Rev. Stat. § 28-608 (2008) .................. 7, 9, 10, 11
Neb. Rev. Stat. § 28-608(1)(a) (2008) ............. 9, 10, 49
Neb. Rev. Stat. § 28-608(1)(b) (2008) ...................9, 10
Neb. Rev. Stat. § 28-608(1)(c) (2008) .......... 7, 9, 10, 49
Neb. Rev. Stat. § 28-608(1)(d) (2008) ...................9, 10
Neb. Rev. Stat. § 28-608(1)(d)(ii) (2008) .....................7
xi
Neb. Rev. Stat. § 28-638..............................................7
Regulations
8 C.F.R. § 1208.13(b)(1) ............................................31
8 C.F.R. § 1208.14(a) ...................................................3
8 C.F.R. § 1240.8(d) ...............................................3, 30
8 C.F.R. § 1240.11(a)(2) ............................................47
8 C.F.R. § 1240.20(a) ...................................................3
Other Authorities
Black’s Law Dictionary (11th ed. 2019) ...................21
Alina Das, The Immigration Penalties
of Criminal Convictions: Resurrecting Categorical Analysis in Immigration Law, 86 N.Y.U. L. Rev. 1669
(2011) ....................................................................23
H.R. Conf. Rep. 109-72 (2005) ..................................42
Robert A. Katzmann, Study Group on
Immigrant Representation: The First
Decade, 87 Fordham L. Rev. 485
(2018) ....................................................................46
2 McCormick on Evidence § 336 (8th ed.
2020) .....................................................................21
22 C. Wright & A. Miller, Federal
Practice and Procedure § 5162.1 (2d
ed. 1992 and Supp. 2019) ....................................21
1
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a10a) is reported at 916 F.3d 1128. The decisions of the
Board of Immigration Appeals (Pet. App. 11a-19a)
and immigration judge (Pet. App. 20a-30a) are unreported.
JURISDICTION
The Eighth Circuit entered judgment on March 1,
2019, Pet. App. 1a, and denied a timely petition for
rehearing on July 2, 2019, Pet. App. 31a. A timely petition for writ of certiorari was filed on September 30,
2019, and granted on December 18, 2019. The jurisdiction of this Court rests on 28 U.S.C. § 1254(1).
STATUTORY PROVISIONS INVOLVED
The pertinent provisions of the Immigration and
Nationality Act, immigration regulations, and Nebraska Revised Statutes are reprinted in an appendix
to this brief. See App., infra, 10a-22a.
STATEMENT
A. The Immigration and Nationality Act
and the Categorical Approach
1. The Immigration and Nationality Act, 8 U.S.C.
§ 1101 et seq., provides a highly structured process for
removing noncitizens from the United States. The
government initiates a removal proceeding by charging an individual with a ground of inadmissibility or
deportability listed in § 1182(a) or § 1227(a), respectively. See §§ 1229, 1229a(a)(2). Under those
2
provisions, a noncitizen may be ordered removed if,
for example, he is present without having been lawfully admitted (and thus is “inadmissible” despite being physically present) or has overstayed a visa (and
thus is now “deportable”). §§ 1182(a)(6)(A)(i),
1227(a)(1)(B). He can also can be ordered removed if
he has been “convicted of” certain enumerated crimes,
including “crime[s] involving moral turpitude,”
§§ 1182(a)(2)(A)(i)(I), 1227(a)(2)(A)(i); controlled substances offenses, §§ 1182(a)(2)(A)(i)(II), 1227(a)(2)(B);
and aggravated felonies, § 1227(a)(2)(A)(iii).
A finding of removability does not always mean
definite removal from the country, though. Generally,
noncitizens may still “ask the Attorney General for
certain forms of discretionary relief from removal,” including asylum and cancellation of removal.
Moncrieffe v. Holder, 569 U.S. 184, 187 (2013).
The INA establishes specific eligibility requirements for each form of relief from removal. E.g.,
§ 1158 (asylum); § 1229b(a) (cancellation of removal
for lawful permanent residents); § 1229b(b) (cancellation for nonpermanent residents). Relevant here, a
nonpermanent resident is eligible to seek cancellation
if he has been physically present in United States for
10 years, he is of “good moral character,” and his removal would result in “exceptional and extremely unusual hardship” to a “spouse, parent, or child” who is
a U.S. citizen or lawful permanent resident.
§ 1229b(b)(1)(A), (B), (D). “In general,” an “alien applying for relief or protection from removal has the
burden of proof to establish that the alien … satisfies
the applicable eligibility requirements” such as these.
3
8 U.S.C. § 1229a(c)(4)(A); see also 8 C.F.R. § 1240.8(d)
(similar).
As with removability, prior convictions also have
consequences for relief: The fourth eligibility requirement for a nonpermanent resident seeking cancellation is that he “has not been convicted of” one of the
enumerated criminal offenses that might make him
removable in the first place. § 1229b(b)(1)(C) (citing
§§ 1182(a)(2), 1227(a)(2), (a)(3)). Accordingly, an immigration judge (IJ) must often consider—at either
the removal phase, or the relief-from-removal phase,
or both—whether a noncitizen’s prior conviction was
for one of the offenses listed in the INA.
Finally, if the IJ determines that the noncitizen is
eligible for a form of relief from removal, the IJ then
exercises his or her discretion to grant or deny that
relief. See 8 U.S.C. § 1229b(a)-(b); 8 C.F.R.
§ 1240.20(a) (cancellation); 8 U.S.C. § 1158(b)(1)(A); 8
C.F.R. § 1208.14(a) (asylum).
2. To determine whether a prior state conviction
counts as a disqualifying offense under federal law,
adjudicators use what is known as the “categorial approach.” Mellouli v. Lynch, 135 S. Ct. 1980, 1986
(2015). Under this method, courts “look not to the
facts of the particular prior case, but instead to
whether the state statute defining the crime of conviction categorically fits within the ‘generic’ federal
definition of a corresponding” offense listed in the
INA. Moncrieffe, 569 U.S. at 190 (internal quotation
marks omitted); see Mellouli, 135 S. Ct. at 1986;
Descamps v. United States, 570 U.S. 254, 261 (2013).
A prior conviction is a categorical match with an
4
enumerated federal offense only if “its elements are
the same as, or narrower than, those of the [federal]
offense.” Mathis v. United States, 136 S. Ct. 2243,
2248 (2016). Otherwise, the state statute is “overbroad” and does not trigger federal consequences.
Descamps, 570 U.S. at 276. This categorical approach
stems from Congress’s specification of “conviction, not
conduct, as the trigger for immigration consequences.” Mellouli, 135 S. Ct. at 1986. And because
“‘[c]onviction’ is ‘the relevant statutory hook’” in both
the removal and relief-from-removal phases, the
“analysis is the same in both contexts.” Moncrieffe,
569 U.S. at 191 & n.4.
For a potential crime involving moral turpitude
(CIMT) specifically, a court looks to see if a conviction
under a state statute necessarily establishes the “two
essential elements” of a CIMT as defined by decades
of immigration law: “a culpable mental state and reprehensible conduct.” Matter of Ortega-Lopez, 26 I. &
N. Dec. 99, 100 (BIA 2013); see also Matter of SilvaTrevino, 26 I. & N. Dec. 550, 553 n.3 (AG 2015); Matter of S-, 2 I. & N. Dec. 353, 357 (BIA 1945). The requisite mental state often takes the form of an “intent
to defraud.” Jordan v. De George, 341 U.S. 223, 228,
232 (1951). So, if a conviction is for a state offense
whose elements include a reprehensible act and an intent to defraud, then it would be a categorical match
and count as a CIMT for immigration purposes.
Since the Ellis Island era, however, courts have
understood that if the statute of conviction does not
require proof of those elements, then the prior offense
is not “necessarily” “immoral” and cannot be a disqualifying CIMT. United States ex rel. Guarino v. Uhl,
5
107 F.2d 399, 400 (2d Cir. 1939) (L. Hand, J.); United
States ex rel. Mylius v. Uhl, 210 F. 860, 862-63 (2d Cir.
1914). Because Congress focused on “convictions,” the
noncitizen’s actual conduct is “‘quite irrelevant.’”
Moncrieffe, 569 U.S. at 190 (quoting Guarino, 107
F.2d at 400). An “alien cannot be deported because in
the particular instance his conduct was immoral” if
his statute of conviction does not categorically establish a CIMT. United States ex rel. Robinson v. Day, 51
F.2d 1022, 1022-23 (2d Cir. 1931) (L. Hand, J.); Guarino, 107 F.2d at 400 (same).
Because the question under the categorical approach is what the “conviction necessarily involved,”
courts “must presume that the conviction ‘rested upon
nothing more than the least of the acts’ criminalized,
and then determine whether even those acts are encompassed by the generic federal offense.” Moncrieffe,
569 U.S. at 190-91 (emphasis added) (brackets omitted) (quoting Johnson v. United States, 559 U.S. 133,
137 (2010)).
One “qualification” to this presumption,
Moncrieffe, 569 U.S. at 191, is what is known as the
“modified” categorical approach. Under that variant,
“when a prior conviction is for violating a so-called ‘divisible statute’”—meaning one that “sets out one or
more elements of the offense in the alternative”—then
courts may “consult a limited class of documents … to
determine which alternative formed the basis of the
defendant’s prior conviction,” and then compare those
elements “with the elements of the generic crime.”
Descamps, 570 U.S. at 257. That limited set of documents—referred to as the “record of conviction,” or the
“Shepard documents”—comprises “the indictment,
6
jury instructions, or plea agreement and colloquy.”
Mathis, 136 S. Ct. at 2249 (citing Shepard v. United
States, 544 U.S. 13, 26 (2005)). Those are the only materials that could satisfy the categorical approach’s
“demand for certainty” that a conviction was actually
for every element of the federally defined offense.
Shepard, 544 U.S. at 21.
Under either version, courts forgo a cumbersome
factual inquiry—taking evidence and hearing testimony about what an old conviction involved—and instead perform a simpler legal one. They ask whether
the “record of conviction of the predicate offense necessarily establishes” that the “particular offense the
noncitizen was convicted of” corresponds to an offense
enumerated in the INA. Moncrieffe, 569 U.S. at 19091, 197-98 (emphasis added). If not, then the conviction is not a categorical match and does not trigger
federal consequences.
B. Factual Background
Petitioner Clemente Avelino Pereida was born
and raised in Mexico. Pet. App. 3a. He has lived in the
United States for nearly 25 years, more than half his
life. Pet. App. 3a. He and his wife have three children.
Pet. App. 3a; Certified Administrative Record (C.A.R.)
125, 127. One is a U.S. citizen; another, who came
with Mr. Pereida to the United States as a young
child, has received protection under the Deferred Action for Childhood Arrivals policy. C.A.R. 115, 127. To
provide for his family, Mr. Pereida has worked difficult jobs in construction and cleaning. Pet. App. 3a;
C.A.R. 126; see C.A.R. 178-91, 362-445 (tax returns
going back to 2001).
7
In 2009, Mr. Pereida was arrested by local authorities and later charged with “criminal attempt,” a misdemeanor under Nebraska law. Pet. App. 2a; App.,
infra, 7a-9a (complaint); 1 see Neb. Rev. Stat. § 28-201
(2008). The county attorney alleged that Mr. Pereida
“intentionally engage[d] in conduct which … constituted a substantial step in a course of conduct intended to culminate in his commission of the crime of
CRIMINAL IMPERSONATION,” Neb. Rev. Stat.
§ 28-608 (2008). 2 App., infra, 7a. The criminal complaint then recited each subsection of the criminal impersonation statute nearly verbatim, without
specifying which one Mr. Pereida was attempting to
violate. App., infra, 7a-8a. That statute covers everything from “[c]arr[ying] on any … occupation without … authorization required by law,” to full-fledged
identity theft (“[a]ccess[ing] … the financial resources
of another through the use of a personal identification
document”). § 28-608(1)(c), (d)(ii) (2008). The only fact
the county attorney alleged was that Mr. Pereida had
“use[d] a fraudulent Social Security card to obtain employment at National Service Company of Iowa,” the
cleaning company where he worked. App., infra, 8a.
Mr. Pereida pleaded no contest to the misdemeanor attempt charge. App., infra, 3a. The state
court found him guilty, fined him $100, and imposed
1 The appendix to this brief contains the pertinent docu-
ments from Mr. Pereida’s record of conviction. App., infra, 1a-9a.
2 Nebraska’s criminal impersonation statute has since been
amended and moved to Neb. Rev. Stat. § 28-638. See Pet. App.
2a n.1.
8
no sentence of incarceration. App., infra, 3a-4a (journal entry and order).
C. Proceedings Below
1. Following Mr. Pereida’s arrest and release by
Nebraska authorities, federal immigration officers
detained him and charged him as removable because
he was never lawfully admitted to the United States.
Pet. App. 3a, 20a-21a; see C.A.R. 487, 492. Mr.
Pereida conceded that he was removable. Pet. App.
3a, 12a, 21a; see C.A.R. 104. But he applied for cancellation of removal to ask the government to spare
his U.S.-citizen son both the “extreme and unusual
mental stress” and emotional “toll” of losing his father, and the additional hardship the son would face
if he (and the other members of his family) were
forced to live without the family’s primary breadwinner. C.A.R. 295, 301; see Pet. App. 3a, 12a; C.A.R. 104,
124-31, 168-76, 291-324.
Mr. Pereida informed the immigration judge of
his pending Nebraska criminal case, and the IJ continued the removal proceedings. C.A.R. 104-05. Once
the conviction was final, the government moved to
pretermit Mr. Pereida’s cancellation application on
the ground that his conviction constituted a CIMT
that made him ineligible for relief under 8 U.S.C.
§ 1229b(b)(1)(C). Pet. App. 21a.
2. The IJ agreed and held Mr. Pereida ineligible
to seek cancellation. Pet. App. 20a-30a.
The IJ first explained that a conviction for attempting to commit an offense that is a CIMT is itself
9
a CIMT. Pet. App. 24a-25a; see § 1182(a)(2)(A)(i)(I). So
the analysis turned on whether a violation of the Nebraska criminal impersonation statute is a CIMT.
The IJ agreed with Mr. Pereida that a violation of
Neb. Rev. Stat. § 28-608 is not categorically a CIMT
because at least one way of violating it—subsection
(c)—does not involve any mens rea element, and
therefore would not establish the requisite “vicious
motive or corrupt mind.” Pet. App. 26a-27a; see § 28608(1)(c) (proscribing “[c]arr[ying] on any profession,
business, or any other occupation without a license,
certificate, or other authorization required by law”).
Because the IJ thought that subsections (a), (b), and
(d) defined separate crimes that “contain[] as a necessary element the intent to defraud, deceive, or harm,”
Pet. App. 26a, he examined the record of Mr. Pereida’s
conviction “to determine whether [Mr. Pereida] was
convicted under subsection (a), (b), or (d), rendering
his offense a CIMT, or under subsection (c).” Pet. App.
27a. 3
3 Although it does not bear on the question presented, we
note that the IJ incorrectly stated that subsection (c) is the only
prong of the Nebraska statute that does not require intent to defraud. Subsection (a) prohibits an individual from “[a]ssum[ing]
a false identity and do[ing] an act in his or her assumed character with intent [i] to gain a pecuniary benefit for himself, herself,
or another or [ii] to deceive or harm another.” Neb. Rev. Stat.
§ 28-608(1)(a) (2008) (emphasis added). Because someone can violate subsection (a) by harboring an intent only to benefit “himself,” rather than “to deceive or harm another,” a conviction
under that subsection does not necessarily involve moral turpitude either. The BIA and the Eighth Circuit repeated this error
when no party corrected it. Pet. App. 7a, 14a-15a. For present
purposes, though, it is immaterial whether the statute contains
10
Based on the “course of conduct” alleged in Mr.
Pereida’s criminal complaint, the IJ posited that Mr.
Pereida must not have been “convicted of attempting
… subsection (c).” Pet. App. 27a; see App., infra, 7a8a. Thus, the conviction was under “subsection (a),
(b), or (d), any of which involves moral turpitude.” Pet.
App. 27a. And because the conviction qualified as a
CIMT, the IJ reasoned, it “constitutes a mandatory
bar to” cancellation of removal. Pet. App. 29a.
3. The BIA dismissed Mr. Pereida’s administrative appeal on alternative grounds. Pet. App. 11a-19a.
Like the IJ, the BIA determined that § 28-608 was
overbroad because subsection (c) is not a CIMT. Pet.
App. 14a-15a. So, like the IJ, the BIA looked to the
record of conviction to determine Mr. Pereida’s “actual crime of conviction.” Pet. App. 16a. The BIA disagreed with the IJ, however, that the record of
conviction affirmatively established a CIMT: Mere allegations in a criminal complaint are not dispositive,
see Descamps, 570 U.S. at 270, and the “entry order
does not specify the particular subsection of the substantive statute [Mr. Pereida] was ultimately convicted of violating.” Pet. App. 17a; App., infra, 3a-4a.
The BIA nonetheless held that Mr. Pereida was
ineligible for relief. Pet. App. 17a. It noted that “[i]n
the context of relief for removal, the respondent bears
the burden of proving that his particular conviction
just one prong that does not constitute a CIMT, or instead two.
As is now undisputed, the statute sweeps too broadly to be a categorical CIMT either way, and the record of conviction does not
clarify which prong Mr. Pereida was attempting to violate.
11
does not bar relief.” Pet. App. 17a. Because the record
of conviction did not specify which subsection of
§ 28-608 Mr. Pereida attempted to violate, he had “not
carried his burden of proving that his conviction is not
[a] CIMT.” Pet. App. 17a.
4. The Eighth Circuit denied Mr. Pereida’s petition for review. Pet. App. 1a-10a.
Like the BIA, the court concluded that Nebraska’s
criminal impersonation statute is overbroad and divisible, and that Mr. Pereida’s conviction record was
inconclusive. Pet. App. 7a-8a. The court noted that
“[w]hile the government bears the burden to prove the
alien is deportable or removable, it is the alien’s burden under the INA to prove he is eligible for cancellation of removal.” Pet. App. 9a. Because “it is not
possible to ascertain which subsection formed the basis for Pereida’s conviction,” the court held that Mr.
Pereida must “bear[] the adverse consequences of this
inconclusive record.” Pet. App. 2a. Accordingly, even
though Mr. Pereida was “not to blame for the ambiguity surrounding his criminal conviction,” the court
held that the ambiguity rendered him ineligible for
relief from removal. Pet. App. 8a.
5. This Court granted certiorari. Mr. Pereida remains at liberty with his family in Nebraska.
SUMMARY OF ARGUMENT
Petitioner’s conviction for “attempted criminal
impersonation” does not bar him from discretionary
relief from removal because his record of conviction
“necessarily” establishes only a non-morally
12
turpitudinous offense. Evidentiary burdens of proof
do not affect that categorical analysis.
I. The INA subjects noncitizens to mandatory deportation based on a past conviction only when their
convictions were “necessarily” for a disqualifying offense. All that a prior conviction necessarily involves
is “the minimum conduct criminalized by the state
statute.” Moncrieffe v. Holder, 569 U.S. 184, 191
(2013). So courts applying the categorical approach
must “presume that the conviction rested upon nothing more than the least of the acts criminalized” by
the statute, and then determine whether even those
acts are encompassed by the generic federal offense.
Mellouli v. Lynch, 135 S. Ct. 1980, 1986 (2015). That
presumption can be rebutted under the modified categorial approach if the record of conviction necessarily
establishes—i.e., shows to a “legal ‘certainty’”—that
the noncitizen was convicted of some more serious alternative element that is a categorical match with the
federal offense. Mathis v. United States, 136 S. Ct.
2243, 2255 n.6 (2016). But where, as here, the record
of conviction does not necessarily establish a more serious offense, then the default presumption remains
unrebutted, and the conviction stands only for the
least criminal acts that could sustain it. Mr. Pereida’s
misdemeanor attempt conviction therefore should not
have barred the Attorney General from even considering whether to grant him relief from removal.
II. A. The Eighth Circuit and the government
agree that an ambiguous conviction record ordinarily
would not lead to immigration consequences, but they
say that this case is different because the INA places
the burden of proof on noncitizens to establish
13
eligibility for cancellation of removal. Burdens of
proof, however, apply to only factual questions that
are resolved through weighing testimony and other
evidence. Most eligibility criteria for cancellation involve such facts (e.g., physical presence in the country
for 10 years), but not the analysis of a past conviction
under the categorical approach. The approach involves a “legal question” that always yields a yes or
no answer: Either “a conviction necessarily establishe[s]” the elements of a disqualifying offense, or it
does not. Mellouli, 135 S. Ct. at 1987. So burdens of
proof never have a role to play, which is why this
Court’s categorical approach cases have never turned
on them, whether the burden was on the government
or on the noncitizen.
B. The analysis is no different when courts apply
the categorical approach to a divisible statute. The
modified categorical approach permits consideration
of the record of conviction in such cases, and the record may show that the conviction necessarily establishes something more than the minimum conduct
criminalized by the state statute. But when the record
does not, the conviction does not necessarily establish
the elements of the federally defined offense. The conviction therefore is not a disqualifying offense.
The government asserts that the modified categorical approach involves a threshold “factual” step to
which a burden of proof can apply. That contradicts
everything this Court has said about the modified approach: It is a limited “tool” whose “focus” remains on
the law, “rather than the facts.” Descamps v. United
States, 570 U.S. 254, 263 (2013). And it serves only to
help answer whether “a defendant was legally
14
convicted of a certain offense.” Mathis, 136 S. Ct. at
2248, 2255 n.6 (emphasis added). Indeed, this Court
has emphasized that the modified analysis must be
legal, not factual, or else it would run afoul of the
Sixth Amendment in sentencing cases.
C. Beyond the basic irrelevance of burdens of
proof to the categorical approach, the Eighth Circuit’s
position also finds no support in the text, context, or
history of the INA. Where Congress wishes to depart
from the usual operation of the categorical approach,
it has done so clearly. It did not do so in the burden of
proof statute. Additionally, the neighboring provisions that Congress added at the same time—explaining how a noncitizen must sustain his burden with
credible testimony and corroborating evidence—underscore that the burden of proof applies to the factual
aspects of a noncitizen’s relief application, not the
evaluation of prior convictions under the categorical
approach. Congress also expressly overrode two presumptions that had applied to other aspects of applications for relief, but it said nothing about displacing
the longstanding presumption that a conviction
stands only for the least that it necessarily establishes.
D. The Eighth Circuit’s position would also create
the kinds of practical difficulties and unfairness that
the categorical approach is meant to avoid. The categorical approach is underinclusive by design. It permits mandatory deportation only when a court is
certain that a noncitizen has been convicted of an offense requiring that harsh consequence. This Court
has emphasized that an underinclusive result poses
little practical difficulty because relief from removal
15
is ultimately discretionary, so the Attorney General
may deny relief to noncitizens whose actual conduct
was the more serious sort. The Eighth Circuit’s rule,
in contrast, would be dramatically overinclusive—
while offering no corresponding failsafe. People convicted under the non-disqualifying prongs of state
statutes would have no way to show their eligibility
for relief when the “absence of records” years after a
conviction renders the “application of the modified
categorical approach” inconclusive, or when conviction records never specified the basis for the conviction in the first place. Johnson v. United States, 559
U.S. 133, 145 (2010). Congress did not put noncitizens
to the task of proving the unprovable or pin their fates
on the fortuity of state and local recordkeeping practices. The Eighth Circuit’s rule should be rejected.
ARGUMENT
I.
A Merely Ambiguous Conviction Does Not
Trigger Immigration Consequences Under
The Categorical Approach.
Mr. Pereida’s conviction makes him ineligible for
cancellation of removal only if it counts as a crime involving moral turpitude under federal immigration
law. Because the record of Mr. Pereida’s conviction
does not establish that he was “necessarily” convicted
of a morally turpitudinous version of “attempted criminal impersonation,” the conviction is not a disqualifying offense.
16
A. A conviction is not disqualifying unless
the record of conviction “necessarily”
establishes all the elements of a
corresponding federal offense.
The INA renders noncitizens ineligible for cancellation of removal if they have been “convicted of” certain offenses. 8 U.S.C. § 1229b(b)(1)(C). “Congress’
specification of conviction, not conduct, as the trigger
for immigration consequences” is significant. Mellouli
v. Lynch, 135 S. Ct. 1980, 1986 (2015). It requires
courts to “focus[] on the legal question of what a conviction necessarily established,” id. at 1987, “not what
acts [the noncitizen] committed,” Moncrieffe v.
Holder, 569 U.S. 184, 191 (2013).
The emphasis on what a conviction “necessarily”
established reflects the categorical approach’s “demand for certainty.” Shepard v. United States, 544
U.S. 13, 21 (2005). The federal consequences attached
to past convictions are often “harsh”: “mandatory deportation” under the INA, Moncrieffe, 569 U.S. at 187,
200, or a 15-year mandatory minimum sentence under the Armed Career Criminal Act (ACCA), 18
U.S.C. § 924(e). So Congress demanded that they be
imposed “based only on a legal ‘certainty’” that a person was formally convicted of an offense deserving of
those consequences. Mathis, 136 S. Ct. at 2255 & n.6.
All that a conviction “necessarily involve[s]” is the
“minimum conduct criminalized by the state statute.”
Moncrieffe, 569 U.S. at 190-91. Courts applying the
categorical approach therefore “must presume that
the conviction ‘rested upon nothing more than the
least of the acts’ criminalized, and then determine
17
whether even those acts are encompassed by the generic federal offense.” Id.; see also Esquivel-Quintana
v. Sessions, 137 S. Ct. 1562, 1568 (2017) (same). This
“focus[] on the legal question of what a conviction necessarily established” has “a long pedigree in our Nation’s immigration law.” Mellouli, 135 S. Ct. at 198687; see United States ex rel. Guarino v. Uhl, 107 F.2d
399, 400 (2d Cir. 1939) (L. Hand, J.) (determining
what a conviction “‘necessarily’” establishes by examining the least criminal conduct punished by the statute); Matter of P-, 3 I. & N. Dec. 56, 59 (BIA 1947)
(collecting similar cases); Matter of M-, 2 I. & N. Dec.
721, 723 (BIA 1946).
The upshot is that, when the statute of conviction
sweeps in more conduct than the relevant federal offense (i.e., when it is “overbroad”), the conviction is
“presum[ptively]” not disqualifying. Moncrieffe, 569
U.S. at 190-91. That presumption is rebuttable,
though. Id. at 191. When a statute is divisible, and
the “record of conviction of the predicate offense necessarily establishes” that the “particular offense the
noncitizen was convicted of” was one of the more serious statutory alternatives—one that does correspond
to the federally defined offense—then the least-actscriminalized presumption will be rebutted and the
conviction will have immigration consequences. Id. at
190-91, 197-98; see also Mellouli, 135 S. Ct. at 1986 &
n.4 (same).
Where the record of conviction does not establish
that the conviction necessarily rested on a particular
prong of a divisible statute, however, then nothing rebuts the default presumption. Any remaining “[a]mbiguity on this point means that the conviction did not
18
‘necessarily’ involve facts that correspond to [the relevant federal] offense.” Moncrieffe, 569 U.S. at 19495. “Under the categorical approach, then, [the
noncitizen] was not convicted of [the disqualifying offense].” Id. at 195; see also Johnson v. United States,
559 U.S. 133, 137, 145 (2010).
B. Mr. Pereida’s conviction is ambiguous,
so it does not “necessarily” establish a
disqualifying crime involving moral
turpitude.
Applying that rule here, Mr. Pereida’s misdemeanor attempt conviction is not a disqualifying offense that bars him from requesting mercy from the
government.
It is undisputed that Mr. Pereida’s statute of conviction is overbroad because at least one prong does
not include any element of intent to defraud or harm
another. See supra at 9-11, 9 n.3; Gov’t Cert. Br. 11;
Pet. App. 7a. That culpable mental state is a required
element for a non-violent offense like this to constitute a CIMT under federal immigration law. See supra at 4. And because a conviction under this statute
does not necessarily establish that element, it presumptively is not a “conviction” for a CIMT.
Nothing in the “record of conviction” here “necessarily establishes” otherwise. Moncrieffe, 569 U.S. at
197-98. Everyone agrees that the record of this misdemeanor conviction does not specify which statutory
prong gave rise to Mr. Pereida’s conviction. Gov’t
Cert. Br. 9; Pet. App. 8a, 17a; App., infra, 1a-9a. Mr.
Pereida was charged with attempting to violate all
19
four prongs in the alternative. So the charging document simply reflects that one “or” another of the four
alternative statutory elements—some morally turpitudinous, some not—was at issue. App., infra, 7a-9a.
And the resulting judgment shows only a plea of no
contest and a finding of guilt as to the charged count.
App., infra, 3a-4a. The only “legal ‘certainty’” about
the conviction, Mathis, 136 S. Ct. at 2255 n.6, then, is
that it stands for the “minimum conduct criminalized
by the state statute,” Moncrieffe, 569 U.S. at 191. And
that is not a CIMT.
The conviction therefore does not count as a CIMT
for immigration purposes. Mr. Pereida should have
been permitted to proceed to a hearing on his application for cancellation of removal, where he could make
his case for discretionary relief.
II. The INA’s Burden Of Proof Provisions Do
Not Bear On The Categorical Analysis.
For all the reasons just stated, it is common
ground here that an ambiguous conviction like this
would not count as a predicate offense if that question
arose in an ACCA case or in the first phase of removal
proceedings, when the question is whether a noncitizen is removable. The Eighth Circuit and the government say that the opposite must be true in a relieffrom-removal case, however, because the INA provides that an “alien applying for relief or protection
from removal has the burden of proof to establish that
the alien satisfies the applicable eligibility requirements.” 8 U.S.C. § 1229a(c)(4)(A); see Pet. App. 8a;
Gov’t Cert. Br. 9. In their view, this burden of proof
20
inverts the normal operation of the categorical approach.
But a burden of proof resolves uncertainty as to
questions of fact. It has no relevance to “legal question[s]” like “what a conviction necessarily established.” Mellouli, 135 S. Ct. at 1987. The categorical
approach always answers that question definitively,
so there is never any work for a burden of proof to do.
§ II.A. The result is the same when the “modified” version of the categorical approach is applied to divisible
statutes, because the ultimate question remains the
same; the modified categorical approach involves no
“factual” step. § II.B. Nothing in the text, structure,
or history of § 1229a(c)(4)(A) suggests that Congress
sought to abrogate the categorical approach’s demand
for certainty in this narrow context. § II.C. Rather,
the Eighth Circuit’s rule would create a host of problems for immigration judges, courts, and noncitizens
that Congress could not have intended. § II.D.
A. Burdens of proof do not affect the
operation of the categorical approach.
1.
Burdens of proof resolve uncertain
factual questions only.
“Statutory construction must begin with the language employed by Congress and the assumption that
the ordinary meaning of that language accurately expresses the legislative purpose.” Engine Mfrs. Ass’n v.
S. Coast Air Quality Mgmt. Dist., 541 U.S. 246, 252
(2004). Under its ordinary meaning, a “burden of
proof,” 8 U.S.C. § 1229a(c)(4)(A), is a rule that dictates
“who must persuade the [factfinder] in its favor to
21
prevail” on “a factual conclusion.” Microsoft Corp. v.
i4i Ltd. P’ship, 564 U.S. 91, 100 n.4 (2011); see also
Black’s Law Dictionary 244 (11th ed. 2019) (“A party’s
duty to prove a disputed assertion or charge”). It goes
hand in hand with the “standard of proof,” which prescribes “how difficult it will be for the party bearing
the burden of persuasion to convince the [factfinder]
of the facts in its favor.” Microsoft, 564 U.S. at 100 n.4.
As such, these rules “appl[y] to questions of fact
and not to questions of law.” Microsoft, 564 U.S. at
114 (Breyer, J., concurring); see also Merck Sharp &
Dohme Corp. v. Albrecht, 139 S. Ct. 1668, 1679 (2019)
(“evidentiary standards, such as ‘preponderance of
the evidence’ or ‘clear and convincing evidence’” do not
apply where “the critical question [is] not … a matter
of fact for a jury but … a matter of law for the judge
to decide”); id. at 1685 (Alito, J., concurring in the
judgment) (same); 2 McCormick on Evidence § 336
(8th ed. 2020) (explaining that the burden of proof is
relevant only to “the trier of fact”); 22 C. Wright & A.
Miller, Federal Practice and Procedure § 5162.1 (2d
ed. 1992 and Supp. 2019) (“[T]he law of burdens of
proof and presumptions tell the judge and lawyers
which litigant has to plead and prove material
facts.”).
A question of fact is one going to “who did what,
when or where, how or why.” U.S. Bank Nat’l Ass’n v.
Village at Lakeridge, LLC, 138 S. Ct. 960, 966 (2018).
And it is answered through the traditional tools of judicial factfinding: “weigh[ing] evidence, [and]
mak[ing] credibility judgments.” Id. at 967. So, the
party with the burden of proof has “the duty of proving” the “essential facts” to answer such questions,
22
using testimony and other evidence that the factfinder then weighs under the relevant “standard of
proof.” Woodby v. INS, 385 U.S. 276, 284 (1966).
Most inquiries relevant to applications for relief
from removal involve such questions of fact. And
§ 1229a(c)(4)(B) plainly places the burden on noncitizens to establish them. Mr. Pereida, for example, submitted hundreds of pages of evidence to demonstrate
that he “has been physically present in the United
States for a continuous period of not less than 10
years,” § 1229b(b)(1)(A), “has been a person of good
moral character during such period,” § 1229b(b)(1)(B),
and that his “removal would result in exceptional and
extremely unusual hardship to [his] … child, who is a
citizen of the United States,” § 1229b(b)(1)(D). See
C.A.R. 104, 124-31, 168-91, 205-70, 272-447. He, his
children, and others also were prepared to testify to
these details at his hearing. See C.A.R. 197-98. The
burden of proof governs each of these criteria, which
could be subject to dispute or doubt. See, e.g., SanchezVelasco v. Holder, 593 F.3d 733, 734-35, 737 (8th Cir.
2010) (noncitizen failed to demonstrate 10 years of
physical presence where he could not “corroborate his
testimony that he had entered the U.S. in 1996”).
2.
The categorical approach involves
no uncertain question of fact, which
is why burdens of proof have not
played a role in this Court’s cases.
The analysis of past convictions is different.
Whether an individual’s “conviction necessarily established” a disqualifying offense is a “legal question.”
Mellouli, 135 S. Ct. at 1987. It is answered by a formal
23
approach “intended to limi[t] the immigration adjudicator’s assessment of a past criminal conviction to a
legal analysis of the statutory offense.” Id. at 1986
(quoting Alina Das, The Immigration Penalties of
Criminal Convictions: Resurrecting Categorical Analysis in Immigration Law, 86 N.Y.U. L. Rev. 1669,
1688, 1690 (2011)). The analysis entails an “elementsbased inquiry” about the statute of conviction, not an
“evidence-based one.” Descamps, 570 U.S. at 266-67.
As a result, an immigration judge evaluating a
past conviction does not “preside[] over the presentation of evidence,” “hear[] … witnesses,” or “take[] a
raft of case-specific historical facts” and “balance[]
them one against another.” Village at Lakeridge, 138
S. Ct. at 968. This Court has specifically forbidden
that: “[O]ur Nation’s overburdened immigration
courts” may not “entertain and weigh testimony”
about past offenses or otherwise “relitigat[e] … past
convictions in minitrials conducted long after the
fact.” Moncrieffe, 569 U.S. at 200-01; see also United
States ex rel. Mylius v. Uhl, 210 F. 860, 863 (2d Cir.
1914) (“[I]mmigration officers … do not act as judges
of the facts to determine from the testimony in each
case whether the crime of which the immigrant is convicted does or does not involve moral turpitude.”). So
the burden of proof that governs those factfinding exercises has no role to play either.
Just as important, the categorical approach always yields a definitive answer to the binary question
it poses: A conviction either necessarily establishes all
elements of a disqualifying federal offense, or it necessarily establishes something less. Because the categorical approach builds in a substantive rule for
24
resolving ambiguity—a conviction presumptively
rests on only the minimum conduct necessary for a
conviction—there is never a tie for a burden of proof
to break.
It is no surprise, then, that this Court’s categorical approach cases have never hinged on who bore the
burden of proof. Many cases arose in contexts where
the government bears the burden, like sentencing
(e.g., Johnson, Descamps, Mathis) and removability
(e.g., Mellouli, Esquivel-Quintana). But the government did not lose those cases because of its burden of
proof. It lost because the conviction records in each
case did not necessarily establish the elements of corresponding generic offenses, and thus failed to satisfy
the categorical approach’s “demand for certainty.”
Mathis, 136 S. Ct. at 2249, 2257. Indeed, a “demand
for certainty” far exceeds the burden on the government in such cases. 4 The requirement in each case
that a conviction “necessarily” establish certain elements in order to have federal consequences came
from the structure of the categorical approach, independent of the government’s burden of proof.
The same has been true in cases where the noncitizen bore the burden of proof. Carachuri-Rosendo v.
Holder, 560 U.S. 563 (2010), was a cancellation of removal case, like this one. The “record of conviction
contain[ed] no finding of the fact” that the noncitizen’s
4 The government’s burden to establish removability in immigration cases is by “clear and convincing evidence.” See 8
U.S.C. § 1229a(c)(3)(A). The government’s burden to establish a
fact that increases a mandatory sentence is “beyond a reasonable
doubt.” Alleyne v. United States, 570 U.S. 99, 111 (2013).
25
drug conviction was a recidivist offense—the critical
fact that would have made his conviction an “aggravated felony” and barred him from seeking cancellation. Id. at 573, 576-77. But that gap in the conviction
record did not inure to his detriment, even though he
bore the burden of proof, and even though he plainly
was, in fact, a recidivist drug offender. Instead, that
gap meant that “Carachuri-Rosendo was not actually
‘convicted[]’” of a recidivist offense. Id. at 577.
Moncrieffe also addressed relief from removal. It
was undisputed that the noncitizen’s marijuana conviction was a removable drug offense. 569 U.S. at 204.
So the question before this Court—whether the conviction was also an aggravated felony—mattered only
because it affected whether he “may seek relief from
removal such as asylum or cancellation of removal
[for lawful permanent residents].” Id. The Court recognized
that,
because
the
noncitizen’s
“[a]mbigu[ous] … conviction did not ‘necessarily’ involve facts that correspond” to an aggravated felony,
he “ha[d] been found not to be an aggravated felon”—
and thus he could apply for relief from removal. Id. at
194-95, 204. Ambiguity about the conviction did not
cut one way with respect to removability (where the
government bears the burden) and the other way with
respect to relief (where the noncitizen does). The
Court did not, for example, presume that the conviction involved the greatest acts criminalized when it
came to relief. Rather, the Court emphasized that the
“analysis is the same in both contexts.” Id. at 191 n.4.
The decision below cannot be squared with these
cases. The Eighth Circuit held that “ambiguity surrounding [Mr. Pereida’s] criminal conviction”
26
amounted to a failure to satisfy his burden of proof.
Pet. App. 8a. But, as just explained, burdens of proof
do not bear one way or the other on the categorical
approach because that approach prescribes its own
rule for resolving any ambiguity: “Ambiguity …
means that the conviction did not ‘necessarily’ involve
facts that correspond to [a disqualifying] offense,” and
not “necessarily” establishing a disqualifying offense
means that the noncitizen “was not convicted” of such
an offense. Moncrieffe, 569 U.S. at 194-95. So, under
the governing analysis, Mr. Pereida “has not been
convicted” of a CIMT; that is all the INA requires.
§ 1229b(b)(1)(C) (emphasis added).
B. Applying the categorical approach to a
divisible statute does not depend on any
burden of proof either.
The government does not dispute that the question at the heart of the categorical approach—
“[w]hether a conviction ‘necessarily established’ conduct that is encompassed by the federal generic offense”—is a “purely legal question.” Gov’t Cert. Br.
11-12. Nor does it argue that “the INA’s allocation of
the burden of proof” affects that ultimate question. Id.
What makes this case different, in the government’s view, is the modified categorical approach. According to the government, that variant mandates a
threshold “step”: using conviction documents to determine “what crime … a defendant was convicted of.”
Gov’t Cert. Br. 12. “And that question,” the government says, “is a factual one to which the INA’s allocation of the burden of proof applies.” Id.
27
Both parts of the government’s argument are
wrong: The modified categorical approach answers
the same question as the categorical approach, and it
involves no question of fact. For all the same reasons
that the INA’s burden of proof provisions do not affect
the categorical approach as applied to indivisible statutes of conviction, they do not affect the approach as
applied to divisible statutes either.
1.
The modified categorical approach
answers the same binary question
as the categorical approach.
“The modified approach … acts not as an exception, but instead as a tool” to “help[] implement the
categorical approach.” Descamps, 570 U.S. at 263. So
the government errs in suggesting that the modified
approach involves a standalone “step” that operates
outside of (and differently from) the categorical approach. The analysis of a divisible statute instead begins, as always, with its text and a legal presumption
that the conviction rests on the least of the acts criminalized by that statute. Moncrieffe, 569 U.S. at 19091. As explained above (at 17-18), the modified approach can then rebut that presumption, but only if
“the record of conviction of the predicate offense necessarily establishes” a conviction for a more serious
version of the crime. Id. at 191, 197-98 (emphasis
added). If it does not, the presumption holds. Id. at
197-98.
In other words, the inquiry does not break down
anytime an inconclusive record of conviction renders
the modified approach an ineffective “tool.” Rather,
the inquiry simply proceeds on the default
28
presumption that the conviction was for the “minimum conduct criminalized by the state statute,”
Moncrieffe, 569 U.S. at 191, because that is the only
“legal ‘certainty’” about the conviction, Mathis, 136 S.
Ct. at 2255 n.6.
Johnson v. United States, 559 U.S. 133 (2010),
confirms as much. Johnson considered whether a
Florida battery conviction qualified as a “violent felony” predicate offense under the ACCA. Id. at 137.
The Florida battery statute was divisible into three
alternative elements, the most minor of which was
mere offensive touching. Id. at 136-37; see Mathis, 136
S. Ct. at 2255. Because “nothing in the record of Johnson’s … battery conviction permitted the District
Court to conclude that it rested upon anything more
than the least of these acts”—the offensive-touching
prong of the divisible statute—this Court had to address whether even that offense counted as a “violent
felony.” Johnson, 559 U.S. at 137 (emphasis added)
(citing Shepard, 544 U.S. at 26 (plurality opinion)).
Johnson shows that the least-acts-criminalized presumption applies precisely when the “absence of records” renders the “application of the modified
categorical approach” inconclusive. Id. at 145. 5
5 Although Johnson arose under the ACCA, Moncrieffe
adopted its least-acts-criminalized presumption under the INA.
See 569 U.S. at 190-91. And the categorical approach applies
identically in both contexts more generally. See Esquivel-Quintana, 137 S. Ct. at 1567-68. Indeed, Johnson itself acknowledged
that its holding would “make it more difficult to remove” noncitizens under an analogous provision of the INA, because even
though court records might sometimes clarify whether a battery
29
The problem with the government’s position is it
assumes that the “which prong?” question must be answered in every case before a court can assess what a
conviction “necessarily” establishes. But reaching a
definitive result under the modified categorical approach has never been necessary to answering the
categorical approach’s bottom-line question. As Johnson shows, when the record of conviction does not clarify which alternative element in a divisible statute
gave rise to a conviction, the only element “necessarily” established by the conviction is the least criminal alternative, and the analysis proceeds from there.
So, an inconclusive conviction record may mean
that “uncertainty remains as to what [the noncitizen]
actually did to violate” the statute, but “uncertainty
on that score doesn’t matter.” Almanza-Arenas v.
Lynch, 815 F.3d 469, 489 (9th Cir. 2016) (en banc)
(Watford, J., concurring in the judgment). All that ultimately “matters … is whether [the noncitizen’s] conviction necessarily established” every element of the
disqualifying offense. Id. And that “is a legal question
with a yes or no answer” whose “resolution is unaffected by which party bears the burden of proof.” Id.;
see supra at 22-26.
Think of it this way: There can never be a 40% or
60% chance that a conviction was “necessarily” for the
federally defined offense. “[T]he documents either
show that the [noncitizen] was convicted of a disqualifying offense under the categorical approach, or they
was of the violent sort, they often will not. 559 U.S. at 144. This
Court accepted that outcome as a “common-enough consequence”
of the categorical approach’s demand for certainty. Id. at 145.
30
do not.” Marinelarena v. Barr, 930 F.3d 1039, 1050
(9th Cir. 2019) (en banc). And if they do not, then he
was not “necessarily” convicted of the disqualifying offense. The “evidence” on that question can never be
“in equipoise,” such that a “preponderance of the evidence” standard would determine the outcome. Medina v. California, 505 U.S. 437, 449 (1992); see Gov’t
Cert. Br. 9 (contending that the “preponderance of the
evidence” standard in 8 C.F.R. § 1240.8(d) applies
here). Again, there is no tiebreaking role for a burden
of proof to play.
The categorical approach is hardly unique in supplying a substantive presumption that largely supplants a generally applicable burden of proof. In
copyright infringement cases, for example, the plaintiff bears the burden of proving each element of her
claim, including that she owns a valid copyright. To
satisfy that element, however, she need not introduce
evidence, but instead may simply rely on the legal
presumption that her registered copyright is valid.
See 17 U.S.C. § 410(c); Latimer v. Roaring Toyz, Inc.,
601 F.3d 1224, 1233 (11th Cir. 2010). So too for trademark infringement. See 15 U.S.C. § 1057(b); Converse, Inc. v. ITC, 909 F.3d 1110, 1117 (Fed. Cir.
2018).
This dynamic exists at common law as well. For
example, a bailor bears the “burden of proof of [showing] negligence” on the part of a bailee. Nat’l Liab. &
Fire Ins. Co. v. R&R Marine, Inc., 756 F.3d 825, 830
(5th Cir. 2014). But when the bailor shows that his
property “was delivered to the bailee in good condition
and damaged while in his possession,” then “the court
31
impose[s]” a rebuttable “presumption of negligence”
by the bailee. Id.
Indeed, the categorical approach is not even the
only example under the INA. The burden of proof provision governing asylum, 8 U.S.C. § 1158(b)(1)(B)(i),
is nearly identical to § 1229a(c)(4), and it was enacted
at the same time. See REAL ID Act of 2005, Pub. L.
No. 109-13, Div. B, § 101(a), (d), 119 Stat. 231, 30204. Under § 1158(b)(1)(B)(i), applicants for asylum
bear the burden to prove that they are “refugee[s],” a
class that includes those with a “well-founded fear of
persecution.” § 1101(a)(42). An applicant who can
demonstrate that he was persecuted in the past, however, benefits from a “regulatory presumption that
[he] possesse[s] a well-founded fear of future prosecution.” Singh v. Sessions, 898 F.3d 518, 521 (5th Cir.
2018) (citing 8 C.F.R. § 1208.13(b)(1)); see, e.g., Hayrapetyan v. Mukasey, 534 F.3d 1330, 1335-36, 1338
n.**** (10th Cir. 2008).
Similarly, under 8 U.S.C. § 1481(a), an individual
“lose[s] his nationality by voluntarily performing” a
relinquishing act (such as swearing allegiance to another country). In any later dispute about nationality,
“the burden shall be upon the person or party claiming that such loss occurred, to establish such claim by
a preponderance of the evidence.” § 1481(b). But, with
respect to the “voluntari[ness]” element, the party
claiming a loss of nationality may rely on a rebuttable
“presum[ption]” that any expatriating act was
“done … voluntarily.” Id.
In each of these situations, the burden of proof
does real work as to other elements of the claim—e.g.,
32
proving that the accused infringer copied the work,
that the bailee received the item in good condition, or
that past persecution or a relinquishing act occurred—just not with respect to the element governed
by a separate legal presumption. The same is true
here: Section 1229a(c)(4)(A) imposes a meaningful
burden on noncitizens with respect to most parts of
their applications for relief from removal, but not the
analysis of past convictions under the categorical (or
modified categorical) approach. See supra at 22-24.
2.
The modified categorical inquiry is
not a “factual” one.
The government’s argument that the modified
categorical approach involves a distinct “factual”
step—and thus is susceptible to a burden of proof—
fails for three other reasons as well.
First, the government contends that the modified
categorical inquiry must be “a factual one” because it
“involves examining documents in the evidentiary
record.” Gov’t Cert. Br. 12. But consulting a record of
conviction does not transform the approach into a factual one. The analysis involves no credibility judgments or reconciling evidence, but only assessing the
legal meaning of an undisputed documentary record.
That is why this Court has repeatedly emphasized that, when a court consults record documents
under the modified categorical approach, its “focus”
must remain on the law, “rather than the facts.”
Descamps, 570 U.S. at 263. When a court examines
“what crime, with what elements” formed the basis
for the prior conviction, it is not asking a factual
33
question. Mathis, 136 S. Ct. at 2249. It does not aim
to discover “what [the] prior factfinder … thought”
when it entered its judgment. Id. at 2255 n.6. Nor may
it ask whether “the adjudicator … ma[d]e [a particular] determination” as a factual matter, Descamps,
570 U.S. at 267, or “what the defendant and state
judge must have understood as the factual basis of the
prior plea,” Shepard, 544 U.S. at 25 (plurality opinion). Instead, the only “relevant question” is the “legal
effect” of the individual’s conviction documents—i.e.,
whether they necessarily establish that “a defendant
was legally convicted of a certain offense,” or not.
Mathis, 136 S. Ct. at 2248, 2255 n.6.
The analysis is no different from any other context in which courts “constru[e] … written instruments” to discern their legal meaning in order to
answer “question[s] solely of law.” Teva Pharm. USA,
Inc. v. Sandoz, Inc., 135 S. Ct. 831, 837 (2015). Contracts, deeds, patents, and statutes all convey their
legal effects in document form. And so, in many cases,
answering a legal question will necessarily involve
analyzing the legal import of those types of records.
Id. 6
Indeed, the same is true of conviction records
themselves when courts use them for a distinct purpose under the categorical approach. In determining
whether a statute is divisible—whether its statutory
6 Of course, those contexts can also involve “subsidiary factfinding” about the “technical” meaning the words on a page
might take on. Teva, 135 S. Ct. at 837-38. But where (as here,
and with most criminal records) the meaning of the documents
is undisputed, only a question of law remains.
34
alternatives are elements as opposed to means—
courts routinely “peek” at the record of conviction in
the case as one example of how state prosecutors treat
the statutory terms. See Mathis, 136 S. Ct. at 225657. Yet there is no dispute that the divisibility question is a purely legal one about whether a statutory
term is an actual element of the offense under state
law. Id. When a court peeks at “the record of a prior
conviction” to answer that question, the nature of the
question does not change: A court consults the conviction record for “the sole and limited purpose” of understanding the meaning of the state statute, the
same as if it were reviewing “authoritative sources of
state law.” Id. at 2256.
Consulting the record of conviction under the
modified categorical approach is similarly limited to
answering a legal question. The record documents
“may be employed only” for the same legal purpose as
analyzing the statute itself: “to determine wh[at] ‘a
jury necessarily had to find’” or a plea necessarily established. Mathis, 136 S. Ct. at 2253 (quoting Taylor
v. United States, 495 U.S. 575, 602 (1990)). That is
why Shepard limited the modified categorical approach to an examination of only those documents
that are legally “conclusive.” Shepard, 544 U.S. at 25
(plurality opinion). Other documents that do not have
an undisputed legal effect or meaning, like a police
report or mere allegations in a criminal complaint, are
off-limits because they would have to be weighed and
35
considered against each other by a factfinder. See id.
at 20-21, 23 (majority opinion). 7
Second, this Court has repeatedly reminded the
government that the modified categorical approach
must not involve any question of fact, because if it did,
the approach would violate the Sixth Amendment.
See Shepard, 544 U.S. at 22-23 (majority opinion); id.
at 24-25 (plurality opinion); Descamps, 570 U.S. at
267. Anything beyond simply examining the “the conclusive significance of a prior judicial record” risks
turning into a factfinding exercise, and thus becoming
subject to the Sixth Amendment’s guarantee of a
“jury’s finding of any disputed fact.” Shepard, 544
U.S. at 25 (plurality opinion); id. at 23 n.4 (majority
opinion); see also Mathis, 136 S. Ct. at 2258-59
(Thomas, J., concurring) (observing that the modified
categorical approach already intrudes too far on the
province of the jury). 8
7 Like the categorical approach itself, these documentary re-
strictions have been a feature of immigration law since long before Shepard. See United States ex rel. Zaffarano v. Corsi, 63
F.2d 757, 759 (2d Cir. 1933) (“[N]either the immigration officials
nor the court reviewing their decision may go outside the record
of conviction”—i.e., “the charge (indictment), plea, verdict, and
sentence.”).
8 Although the Sixth Amendment’s jury-trial right does not
apply in removal proceedings, the operative statutory term here
(“convicted”) has both criminal and noncriminal applications under the INA. See 8 U.S.C. § 1326(b). And this Court “must interpret the statute consistently, whether [it] encounters its
application in a criminal or noncriminal context.” Sessions v. Dimaya, 138 S. Ct. 1204, 1217 (2018) (quoting Leocal v. Ashcroft,
543 U.S. 1, 12 n.8 (2004)).
36
Third, if the government were correct that the
modified categorical approach involved a “factual” determination, then that determination would be unreviewable. The courts of appeals lack jurisdiction to
review the BIA’s factual findings in cases involving
“criminal aliens.” 8 U.S.C. § 1252(a)(2)(C)-(D),
(b)(4)(B). Yet the courts of appeals have uniformly understood that they may review the agency’s application of the modified categorical approach. 9 Indeed,
they review those determinations de novo—without
any deference to the agency—precisely because assessing the meaning of old conviction records is a
purely legal exercise “of the kind that appellate
courts” can handle at least as well as the BIA. Village
at Lakeridge, 138 S. Ct. at 968. 10
In short, the modified categorical approach is not
a “modified factual” one to which a burden of proof applies. Descamps, 570 U.S. at 266.
9 See, e.g., Patel v. Holder, 707 F.3d 77, 79-83 (1st Cir. 2013);
Wala v. Mukasey, 511 F.3d 102, 105, 109-10 (2d Cir. 2007); Singh
v. Att’y Gen., 839 F.3d 273, 282-86 (3d Cir. 2016); Larios-Reyes v.
Lynch, 843 F.3d 146, 152-55 (4th Cir. 2016); Flores-Larrazola v.
Lynch, 840 F.3d 234, 237, 239-40 (5th Cir. 2016), as revised (Oct.
28, 2016); Raja v. Sessions, 900 F.3d 823, 827-29 (6th Cir. 2018);
Lopez v. Lynch, 810 F.3d 484, 488-90 (7th Cir. 2016); Olmsted v.
Holder, 588 F.3d 556, 559-60 (8th Cir. 2009); Cornejo-Villagrana
v. Whitaker, 912 F.3d 479, 482-85 (9th Cir. 2017); Batrez Gradiz
v. Gonzales, 490 F.3d 1206, 1207, 1210-11 (10th Cir. 2007); Gordon v. U.S. Att’y Gen., 861 F.3d 1314, 1318-20 (11th Cir. 2017).
10 See, e.g., Raja, 900 F.3d at 827-29; Gordon, 861 F.3d at
1318-20; Flores-Larrazola, 840 F.3d at 237, 239-40; Patel, 707
F.3d at 79; Wala, 511 F.3d at 105.
37
C. The text, context, and history of
§ 1229a(c)(4)(A) do not support the
Eighth Circuit’s contrary interpretation.
The government and the Eighth Circuit’s reading
of § 1229a(c)(4)(A) also finds no support in any usual
indicator of statutory meaning—text, statutory context, and history.
Text. As noted above (at 20-22), the ordinary
meaning of “burden of proof” is not a concept that applies to legal questions. And § 1229a(c)(4)(A)’s text
lacks any indication that Congress meant to alter the
categorical approach’s legal nature or do away with
its usual “demand for certainty’ when determining
whether [an individual] was convicted of a generic offense.” Mathis, 136 S. Ct. at 2257. Section 1229a(c)(4)(A) says nothing at all about
“convictions”—the term that is the INA’s “statutory
hook” for the categorical approach. Moncrieffe, 569
U.S. at 191. Rather, it says only that “[a]n alien applying for relief or protection from removal has the
burden of proof to establish that the alien … satisfies
the
applicable
eligibility
requirements.”
§ 1229a(c)(4)(A)(i). That provision is fully compatible
with the categorical approach: When an applicant for
cancellation shows that his record of conviction does
not necessarily establish every element of the federal
offense, he establishes that he “has not been convicted
of” an enumerated offense. § 1229b(b)(1)(C) (emphasis added).
By contrast, Congress “well knows how to instruct … judges to” depart from the ordinary operation of the categorical approach when it wishes.
38
Mathis, 136 S. Ct. at 2252. Indeed, “[i]n other statutes, using different language, it has done just that.”
Id. In 8 U.S.C. § 1101(a)(43)(M)(i), for instance, Congress made clear that courts should not apply the categorical approach in determining whether a
noncitizen’s conviction for “an offense that ... involves
fraud or deceit” was one “in which the loss to the victim or victims exceeds $10,000.” See Nijhawan v.
Holder, 557 U.S. 29, 38-39 (2009). The use of “[t]he
words ‘in which’ … refer to the conduct involved ‘in’
the commission of the offense of conviction, rather
than to the elements of the offense.” Id. at 39. With
those words, Congress “call[ed] for a circumstancespecific examination” of the offense rather than “the
categorical approach.” Moncrieffe, 569 U.S. at 202 (citing Nijhawan, 557 U.S. at 39). And because that is a
factual approach, the Court invoked the applicable
burden proof. Nijhawan, 557 U.S. at 42 (“the Government must show the amount of loss by clear and convincing evidence”). 11
11 Other provisions of the INA similarly address conduct rather than convictions, and courts accordingly do not apply the
categorical approach to them either. See, e.g., Nijhawan, 557
U.S. at 37 (discussing § 1101(a)(43)(P), which defines as an aggravated felony “‘an offense’ that amounts to ‘falsely making,
forging, counterfeiting, mutilating, or altering a passport,’ … ‘except in the case of a first offense for which the alien ... committed
the offense for the purpose of assisting... the alien’s spouse, child,
or parent ... to violate a provision of this chapter’”); HernandezZavala v. Lynch, 806 F.3d 259, 262, 266 (4th Cir. 2015)
(§ 1227(a)(2)(E)(i) renders removable “[a]ny alien who … is convicted of a crime of domestic violence” where the crime is “committed by,” for instance, “a current or former spouse of the
[victim]”); see also United States v. Hayes, 555 U.S. 415, 421-23
39
Because § 1229a(c)(4)(A) lacks any comparable
terms that signal a break with the ordinary operation
of the categorical approach, it should not be understood to do so.
Statutory context. The Court “interpret[s] the
relevant words not in a vacuum, but with reference to
the statutory context,” Luna Torres v. Lynch, 136 S.
Ct. 1619, 1626 (2016), including “other neighboring
provisions,” Henson v. Santander Consumer USA
Inc., 137 S. Ct. 1718, 1722 (2017). Section
1229a(c)(4)(A)’s neighboring provisions further indicate that it has nothing to do with the analysis of past
convictions.
Start with the immediate next subparagraphs,
both of which were added to the INA at the same time
as subparagraph (A). See REAL ID Act of 2005, Pub.
L. No. 109-13, Div. B, § 101(d), 119 Stat. 231, 304-305.
Subparagraph (B) explains how the noncitizen can
“[s]ustain[]” the “burden” set out in subparagraph (A):
He must submit any required “information or documentation in support of [his] application for relief”
alongside “testimony [that] is credible, is persuasive,
and refers to specific facts sufficient to demonstrate
that [he] has satisfied [his] burden of proof.”
§ 1229a(c)(4)(B). The IJ will then “weigh the credible
testimony” against “other evidence of record,” and decide whether to ask the applicant to “provide evidence
which corroborates otherwise credible testimony.” Id.
Subparagraph (C), in turn, explains how an IJ should
(2009) (explaining why a criminal statute, 18 U.S.C.
§ 921(a)(33)(A), departs from the categorical approach for similar reasons).
40
make “[c]redibility determination[s]”: by considering
the applicant’s “demeanor, candor, or responsiveness,” and “the consistency of [the applicant’s written
and oral] statements with other evidence of record,”
and the like. § 1229a(c)(4)(C).
The REAL ID Act’s scheme—(A) imposing a burden of proof, (B) requiring testimony and corroboration to sustain the burden, and (C) prescribing how
credibility should be assessed—applies naturally to
the many factual questions that a noncitizen will have
to answer. See supra at 22. But it is an ill fit with the
examination of past convictions, where testimony,
corroboration, and credibility do not enter the picture.
See supra at 23-26.
Next, consider the immediately preceding paragraph, § 1229a(c)(3). That paragraph is entitled “Burden on service [i.e., the former Immigration and
Naturalization Service] in cases of deportable aliens.”
§ 1229a(c)(3). It expressly addresses “criminal conviction[s],” specifying both the particular types of documents or records that the government may use as
“proof of a criminal conviction” and the types of “certification[s]” from state officials that the government
must obtain to introduce those documents.
§ 1229a(c)(3)(B)-(C). Had Congress intended its discussion of the noncitizen’s burden of proof in
§ 1229a(c)(4)(A) to similarly address any issue with
prior convictions, it would have used specific language
in that provision too.
The “established legal backdrop” that Congress
was “operat[ing] against, and rely[ing] on,” offers another significant contextual cue. Luna Torres, 136 S.
41
Ct. at 1632. The background rule here is clear: The
operation of the categorical approach has been the
same for nearly a century. See supra at 17. And, most
importantly, it has long worked the same even in contexts where the noncitizen bore the burden of proof.
In Mylius, for example, the court considered the effect
of a conviction in a noncitizen’s home country on his
admissibility to the United States. 210 F. at 862. Then
as now, a noncitizen bore the burden of proof to show
he may enter the country. See Act of Mar. 3, 1891, ch.
551, § 1, 26 Stat. 1084, 1084; 8 U.S.C.
§ 1229a(c)(2)(A). But that burden did not stop the
court from crafting a “narrow[] … inquiry” into
whether a conviction for the crime “necessarily involve[d] moral turpitude.” Mylius, 210 F. at 862 (emphasis added); see also Br. of Immigration Law
Professors § I.B. Had Congress intended to alter the
uniform, established operation of the categorical approach by enacting a generally applicable burden of
proof, it would have had to speak much more clearly.
History. This Court has repeatedly looked to statutory and legislative history to confirm that amendments were not intended to abrogate the categorical
approach. See Shepard, 544 U.S. at 19; Descamps, 570
U.S. at 267-68. Here, nothing in the history of
§ 1229a(c)(4) indicates that Congress sought to displace the categorical approach’s focus on the minimum that a conviction “necessarily” establishes.
The statute’s text explains that the REAL ID Act
made “Amendments to Federal Laws to Protect
Against Terrorist Entry.” Pub. L. No. 109-13, Div. B,
119 Stat. 231, 302. The bicameral Conference Report
elaborates that Congress enacted the REAL ID Act to
42
“respond[] to terrorist abuse of our asylum laws by
amending the INA to limit fraud.” H.R. Conf. Rep.
109-72, at 161 (2005). To that end, Congress added
two clauses to the REAL ID Act’s new burden of proof
provisions specifically to eliminate presumptions (unrelated to convictions) that had benefited applicants
for asylum and relief from removal. 12 That is significant because it shows how the REAL ID Act targeted
with surgical precision presumptions that Congress
was concerned about. Yet the Act said nothing to supersede the longstanding minimum-conduct-criminalized presumption that applies when analyzing
what a conviction “necessarily” establishes.
12 One clause, applicable only to asylum, puts the burden on
applicants to show that a protected ground was “at least one central reason for persecuting the applicant.” 8 U.S.C.
§ 1158(b)(1)(B)(i). Congress understood that this “‘central reason’ standard will eliminate [a] presumption” that had emerged
in asylum case law, which Congress feared had made it easier
for terrorists to seek asylum. H.R. Conf. Rep. 109-72, at 163-65.
The second clause, applicable to all forms of relief, provides that
when an IJ evaluates an applicant’s testimony, “[t]here is no presumption of credibility, however, if no adverse credibility determination is explicitly made, the applicant or witness shall have
a rebuttable presumption of credibility on appeal.” 8 U.S.C.
§ 1229a(c)(4)(C); id. § 1158(b)(1)(B)(iii) (same for asylum). Congress enacted that provision to “make[] it clear” how presumptions should operate in credibility determinations. H.R. Conf.
Rep. 109-72, at 168 (asylum); id. at 169 (applying the same new
“credibility and corroboration standards” for asylum to “other
applications for relief” as well).
43
D. The Eighth Circuit’s inversion of the
categorical approach would produce
grave practical difficulties.
Beyond lacking any support in the statute and the
time-honored operation of the categorical approach,
the Eighth Circuit’s reading of § 1229a(c)(4) would
also lead to a host of “‘daunting’ difficulties and inequities” that Congress could not have intended.
Descamps, 570 U.S. at 270 (quoting Taylor, 495 U.S.
at 601-02). Its approach would undermine the “efficiency, fairness, and predictability in the administration of immigration law” that “the categorical
approach ordinarily works to promote.” Mellouli, 135
S. Ct. at 1987.
1. To take the archetypal scenario under the modified categorical approach, consider a lawful permanent resident who is charged with violating a divisible
statute that proscribes breaking and entering into “a
house, a building, a car, or a boat” with intent to commit a felony. Mathis, 136 S. Ct. at 2255. He pleads
guilty to breaking and entering into a car. That is not
an aggravated felony “burglary offense” under
§ 1101(a)(43)(G), because the elements of “ordinary
vehicle[]” burglary (as opposed to burglary of occupied
vehicles and structures) is not “federal generic ‘burglary.’” United States v. Stitt, 139 S. Ct. 399, 407
(2018); see Shepard, 544 U.S. at 17. But no written
plea agreement is drafted, and the court’s judgment
simply reflects a conviction under the relevant code
section.
In removal proceedings years later, the government argues that the “burglary” conviction is an
44
aggravated felony that subjects him to mandatory deportation. § 1229b(a)(3). His record of conviction is
ambiguous, so he cannot disprove the possibility that
he was convicted of generic burglary. Yet, under the
Eighth Circuit’s rule, “the fact that [he] is not to
blame for the ambiguity surrounding his criminal
conviction does not relieve him of his obligation to
prove eligibility for discretionary relief.” Pet. App. 8a.
This is no hypothetical problem. As this Court has
recognized, “in many cases” conviction records “will be
incomplete,” and the “absence of records will often
frustrate application of the modified categorical approach.” Johnson, 559 U.S. at 145. State and local
courts frequently fail to create the relevant conviction
documents in the first place. See NACDL Br. § I.A.
Even where they do create those records, they routinely fail to specify the precise subsection of a state
statute involved in the conviction. See id. § I.B. And
even where records are created, and do specify a particular subsection, they are often lost or destroyed in
the intervening years. See id. § I.C.
That is exactly what happened in Sauceda v.
Lynch, 819 F.3d 526 (1st Cir. 2016), the First Circuit’s
case addressing the question presented here. The
noncitizen there “was unable to secure any … documents” that “could clarify under which prong he was
convicted” because “the Superior Court of the county
where he was convicted does not, in misdemeanor
cases, maintain copies of the documents he needed.”
Id. at 530 n.5. The IJ found him ineligible for cancellation of removal on that basis, even while noting that
he otherwise had a strong case for relief. Id. at 53032. In this “common-enough” circumstance, Johnson,
45
559 U.S. at 145, the noncitizen is simply out of luck
for failing to prove the unprovable.
The government embraces the unfairness of this
result, declaring that “assigning” who “loses when
there is no evidence on a question or when the answer
is simply too difficult to find” is “precisely what a burden of proof is designed to do.” Gov’t Cert. Br. 12. But
the issue in cases like this is not that it is “too difficult” to clarify the details of the past offense; it is that
the categorical approach largely forbids it.
Unlike litigants who bear a burden of proof in
other contexts, the noncitizen could not use any of the
tools that one would ordinarily use to try to satisfy his
burden. He could not, for example, “submit[] testimony from his lawyer” or “the judge who accepted his
plea to ascertain what offense was charged and
pleaded to in the state court.” Sauceda, 819 F.3d at
532. He could not even testify on his own behalf to explain the critical “fact” he needs to get relief. That is
because, for good reason, the categorical approach absolutely bars venturing beyond the record of conviction and into time-consuming and uncertain
“minitrials conducted long after the fact.” Moncrieffe,
569 U.S. at 200-01. Instead, the noncitizen would be
limited to a narrow range of conviction documents
that he neither creates nor maintains.
These strict limitations on the scope of the inquiry
make perfect sense when the categorical approach is
understood (as it always has been) as a formalized,
legal analysis of the minimum that a conviction record “necessarily” establishes. But they are arbitrary
and crippling if the analysis instead aims to uncover
46
the particular way the noncitizen violated a state
statute years earlier.
The Eighth Circuit’s rule would mean that eligibility for humanitarian relief from removal will often
turn not on what an individual was actually convicted
of, but on the happenstance of state and local recordkeeping practices. This kind of random fortuity undermines the categorical approach’s goals of
“efficiency” and “fairness.” Mellouli, 135 S. Ct. at
1987. And, as Sauceda and this case illustrate, conviction records are particularly likely to be vague, incomplete, or destroyed when they involve less serious
crimes like misdemeanors. See also NACDL Br. § I.AC. So the costs of the Eighth Circuit’s rule are likely
to fall on those most deserving of relief.
Even where the documents are clarifying and do
still exist, however, obtaining them is often practically impossible for noncitizens who “are not guaranteed legal representation and are often subject to
mandatory detention, § 1226(c)(1)(B), where they
have little ability to collect evidence.” See Moncrieffe,
569 U.S. at 201; Br. of Immigrant Defense Project
§ I.A.1-2. 13 Additionally, many noncitizens may be
13 Lack of representation and detention will often make all
the difference: “(1) for individuals represented and released or
never detained, 74 percent have successful outcomes; (2) for individuals who are unrepresented but released or never detained,
13 percent have successful outcomes; (3) for individuals who are
represented but detained, 18 percent have successful outcomes;
and (4) for individuals who are unrepresented and detained, 3
percent have successful outcomes.” Robert A. Katzmann, Study
Group on Immigrant Representation: The First Decade, 87 Fordham L. Rev. 485, 495 (2018).
47
unable to speak English fluently enough to navigate
placing records requests to state or local court archives. Id. § I.A.3. This burden will be shared by already-overstretched immigration judges, who are
obligated to facilitate noncitizens’ applications for relief from removal. See 8 C.F.R. § 1240.11(a)(2);
Moncrieffe, 569 U.S. at 201; see generally Br. of Former United States Immigration Judges.
2. “Still worse, the [Eighth Circuit’s] approach
will deprive some defendants of the benefits of their
negotiated plea deals.” Descamps, 570 U.S. at 271.
One salutary feature of the categorical approach is
that it “enables aliens to anticipate the immigration
consequences of guilty pleas in criminal court.”
Mellouli, 135 S. Ct. at 1987. A noncitizen can agree to
“enter [a] ‘safe harbor’ guilty plea[] that do[es] not expose the alien defendant to the risk of immigration
sanctions.” Id. So, to take our hypothetical car burglar
again, suppose that he is initially accused of breaking
into an occupied camper van but intends to fight the
charge at trial. To avoid the burden of trial, the prosecutor offers him a deal to plead guilty to the lesser
prong of the statute covering simple car burglary. And
to avoid the risk of immigration consequences if he is
convicted of the generic burglary charge, the noncitizen agrees to the deal.
Under the Eighth Circuit’s rule, if a transcript of
the plea colloquy has since been destroyed (or was
never created), then he will lose the “benefits of [his]
negotiated plea deal[],” even though avoiding that
consequence was the entire purpose of forgoing his
right to a trial. Descamps, 570 U.S. at 271. Indeed,
“preserving the [defendant’s] right to remain in the
48
United States may be more important to the [defendant] than any potential jail sentence”—and certainly
in cases like Mr. Pereida’s, in which a noncitizen
pleads guilty to a no-incarceration misdemeanor and
so likely focuses exclusively on downstream immigration consequences. Jae Lee v. United States, 137 S. Ct.
1958, 1968 (2017). This Court has emphasized, repeatedly, that the categorical approach should not be
understood to functionally “rewrite” plea bargains in
that “unfair” way. Descamps, 570 U.S. at 271 (quoting
Taylor, 495 U.S. at 601-02).
For those same reasons, adopting the Eighth Circuit’s rule would open up wide swaths of prior convictions to ineffective-assistance-of-counsel challenges.
Noncitizens like our car burglar could argue that his
attorney’s failure to ensure that the record reflected
the particular statutory prong at issue—even if that
is not typically recorded in the jurisdiction—violated
counsel’s duty to mind future immigration consequences in plea proceedings. See Jae Lee, 137 S. Ct. at
1968; Padilla v. Kentucky, 559 U.S. 356, 371 (2010).
3. What’s more, the Eighth Circuit’s rule will be
overinclusive, treating everyone as if they were convicted of a more serious offense under a statute unless
they can prove otherwise. That flips the categorical
approach on its head.
This Court has emphasized that the approach is
“underinclusive” by design, and that “this degree of
imperfection” is far preferable to imposing the “harsh
consequences” of mandatory deportation on noncitizens who do not deserve it. Moncrieffe, 569 U.S. at
187, 205; see also Johnson, 559 U.S. at 145. Yet the
49
Eighth Circuit’s overinclusive rule would mean that a
merely ambiguous conviction like Mr. Pereida’s must
be deemed so serious that it strips the Attorney General of authority even to consider whether to grant
cancellation. There is no failsafe. Relief would be
strictly barred “no matter how compelling his case” is
on the merits, Moncrieffe, 569 U.S. at 187, and even if
the offense was in fact a non-morally turpitudinous
one, like using a fake social security card to obtain
employment (over the table and paying taxes) with no
intent to defraud or harm another. See Neb. Rev. Stat.
§ 28-608(1)(a), (c) (2008) (making it unlawful for
someone to “[a]ssume[] a false identity and do[] an act
in his … assumed character with intent to gain a pecuniary benefit for himself,” or to “[c]arr[y] on any …
occupation without … authorization required by
law”).
In contrast, the well-accepted “underinclusive” alternative has essentially no practical consequences.
When a conviction is not disqualifying under the categorical approach, that does not mean the noncitizen
must be granted relief; cancellation of removal is always discretionary. So, if it turns out that an individual with a record like the one here in fact violated the
statute in a morally turpitudinous way (say, by impersonating others to raid their bank accounts), that
can be accounted for during the discretionary phase
of proceedings, when the categorical approach does
not apply and everything is fair game. “The Attorney
General may, in his discretion, deny relief” based on
the circumstances of the offense, “just as he may deny
relief if he concludes the negative equities outweigh
the positive equities of the noncitizen’s case for other
reasons.” Moncrieffe, 569 U.S. at 204.
50
“As a result, ‘to the extent that … reject[ing] …
the Government’s [view] … may have any practical effect on policing our Nation’s borders, it is a limited
one.’” Id. (quoting Carachuri-Rosendo, 560 U.S. at
581).
CONCLUSION
For the reasons above, the Court should reverse
the judgment of the Eighth Circuit.
Respectfully submitted,
David V. Chipman
Raul F. Guerra
MONZÓN, GUERRA &
ASSOCIATES
1133 H Street
Lincoln, NE 68508
Brian P. Goldman
Counsel of Record
Thomas King-Sun Fu
Kory DeClark
ORRICK, HERRINGTON &
SUTCLIFFE LLP
405 Howard Street
San Francisco, CA 94105
(415) 773-5700
brian.goldman@orrick.com
Thomas M. Bondy
Benjamin P. Chagnon
Monica Haymond
ORRICK, HERRINGTON &
SUTCLIFFE LLP
E. Joshua Rosenkranz
1152 15th Street NW
ORRICK, HERRINGTON &
Washington, DC 20005
SUTCLIFFE LLP
51 West 52nd Street
New York, NY 10019
January 28, 2020
1a
APPENDIX A – RECORD OF NEBRASKA
CONVICTION
(Certified Administrative Record 162-165)
Image ID: D00049200C22
JOURNAL ENTRY AND ORDER
IN THE COUNTY COURT OF SALINE
COUNTY, NEBRASKA
ST V. CLEMENTE
Printed on 5/06/2011
A PEREIDA
at 1:28
DOB: 7/09/1971
Room 22C01
Case ID: CR 10 197
Page 1
Citation:
Date of Hearing 5/06/2011
CHARGES (AMENDMENTS/PLEAS/FINDINGS/
FINES/PRESENTENCE/JAIL/DISMISSALS)
CHARGE STATUTE DESCRIPTION CLASS TYPE
01
28-201
Attempt of a
1
MSD
class 3A or
class 4 felo
APPEARANCES AND ADVISEMENT
Judge
J. Patrick McArdle
Defense Counsel
Monzon,Carlos,
Prosecutor
Tad D Eickman
TRIAL/MOTION HEARING
Hearing held on:
Hearing-Motion for return of
seized property
Motion Granted
2a
Hon.
/s/ J. Patrick McArdle
J. Patrick McArdle
____________________
Bailiff
CASE FILE COPY
5/06/2011
Date
Tape Nos. Digital
JOURNAL ENTRY
AND ORDER
FILED BY
Clerk of the Saline County Court
05/06/2011
Under 8 C.F.R. Section 1003.41(b) or 8 C.F.R.
1003.41(c)(2). I certify and attest that I am an
immigration officer and this document:
1. Is a true and correct copy of the original
document reviewed or
2. Is a document received electronically from the
state’s record repository or other court’s record
repository (circle one).
/s/ Carl Wisehart
Signature of Immigration Officer
8/28/2014
Date
U.S. Immigration and Customs Enforcement
3a
JOURNAL ENTRY AND ORDER
IN THE COUNTY COURT OF SALINE
COUNTY, NEBRASKA
ST V. CLEMENTE
Printed on 6/14/2010
A PEREIDA
at 9:37
DOB: 7/09/1971
Room 22C01
Case ID: CR 10 197
Page 1
Citation:
Date of Hearing 6/14/2010
CHARGES (AMENDMENTS/PLEAS/FINDINGS/
FINES/PRESENTENCE/JAIL/DISMISSALS)
CHARGE STATUTE DESCRIPTION CLASS TYPE
01
28-201
Attempt of a
1
MSD
class 3A or
class 4 felo
Plea: No Contest Found: Guilty Fine: $100.00
APPEARANCES AND ADVISEMENT
Judge
J. Patrick McArdle
Defendant
CLEMENTE A PEREIDA
Defense Counsel
Monzon,Carlos,
Prosecutor
Steven J Reisdorff
Interpreter
Alex Perez
ARRAIGNMENT
Defendant advised of and waived rights.
Defendant waives jury trial.
Defendant enters above pleas.
Pleas entered knowingly, intelligently, voluntarily,
and a factual basis for plea(s) found.
Court finds as shown above.
4a
SENTENCING
Defendant was granted allocution and sentence was
pronounced by the Court.
Defendant ordered to pay fines as shown above; for
a total of
$100.00, and all costs of
prosecution.
Defendant to pay Court Costs
$48.00
ADDITIONAL ENTRIES OF RECORD
Defendant is advised as follows: “If you are not a
United States citizen you are hereby advised that a
conviction of the offense for which you have been
charged may have the consequence of removal from
the United States, or denial of naturalization
pursuant to the laws of the United States.”
Hon.
/s/ J. Patrick McArdle
J. Patrick McArdle
____________________
Bailiff
CASE FILE COPY
6/14/2010
Date
Tape Nos. Digital
JOURNAL ENTRY
AND ORDER
FILED BY
Clerk of the Saline County Court
06/14/2010
5a
IN THE COUNTY COURT OF SALINE
COUNTY, NEBRASKA
THE STATE OF NEBRASKA, )
)
Plaintiff, ) Case No. CR 10-197
)
vs.
)
)
NOTICE OF
)
HEARING
CLEMENTE A. PEREIDA, aka )
CLEMENTEA PEREIDA
)
)
Defendant. )
Notice is hereby given that the hearing in the
above entitled matter is set for JUNE 14, 2010 at
9:00 o’clock a.m. in the Saline County Court, First
Floor—Room 105, Wilber, Nebraska.
DATED: this 8 day of June, 2010.
THE STATE OF NEBRASKA, Plaintiff
/s/ Tad D. Eickman
Tad D. Eickman
NSBA# 15655
Saline County Attorney
310 West Third–P.O. Box 713
Wilber, NE 68465
TEL: (402) 821-2531 FAX: 821-2076
6a
CERTIFICATE OF SERVICE
The undersigned does hereby certify that a true
and accurate copy of the foregoing Notice of Hearing
was sent to each of the below listed parties by mailing
the same in the United States Mail, postage prepaid,
on this 8 day of June, 2010.
/s/ Tad D. Eickman
Tad D. Eickman, Saline Co. Attorney
Carlos A. Monzon, Attorney
650 J Street, Ste. 401 - The Mill Towne Bldg
Lincoln, NE 68508
FILED BY THE CLERK
OF THE SALINE COUNTY COURT ON
JUN 08 2010
WILBER, NEBRASKA
7a
IN THE COUNTY COURT OF THE STATE OF
NEBRASKA, SALINE COUNTY
STATE OF NEBRASKA, )
) ss.
County of Saline
)
CASE# (CR) 10 -197
COMPLAINT
For:
THE STATE OF NEBRASKA, ) 1. Criminal Attempt
Plaintiff,
)
(Criminal
vs.
)
Impersonation)
CLEMENTE A. PEREIDA, aka )
R.S. 28-201(1)(b)
CLEMENTEA PEREIDA
)
The complaint and information of Tad D. Eickman,
County Attorney of Saline County aforesaid, made in
the name of the State of Nebraska, before me, the
undersigned County Judge, within and for said
County of Saline, State of Nebraska, this 7th day of
June, 2010, who being duly sworn, on oath says, that
CLEMENTE A. PEREIDA, aka CLEMENTEA
PEREIDA on or about January 1, 2007 to July 22,
2009, in the County of Saline and State of Nebraska,
then and there being did then and there
1. On or about January 1, 2007 to July 22, 2009, in
the County of Saline and State of Nebraska, then
and there being did then and there intentionally
engage
in
conduct
which,
under
the
circumstances as he believed them to be,
constituted a substantial step in a course of
conduct intended to culminate in his commission
of the crime of CRIMINAL IMPERSONATION
R.S. 28-608, Penalty: Class IV Felony, to-wit: did
(a) assume a false identity and did an act in his or
her assumed character with intent to gain a
8a
pecuniary benefit for himself, herself, or another
or to deceive or harm another; or (b) pretend to be
a representative of some person or organization
and did an act in his or her pretended capacity
with the intent to gain a pecuniary benefit for
himself, herself or another and to deceive or harm
another; or (c) carry on any profession, business,
or any other occupation without a license,
certificate, or other authorization required by law;
or (d) without the authorization or permission of
another and with the intent to deceive or harm
another:
(i) obtain
or
record
personal
identification documents or personal identifying
information; and (ii) access or attempt to access
the financial resources of another through the use
of a personal identification document or personal
identifying information for the purpose of
obtaining credit, money, goods, services, or any
other thing of value, to-wit: did use a fraudulent
Social Security card to obtain employment at
National Service Company of Iowa, located in
rural Crete, Saline County, Nebraska, value
$500.00 or more but less than $1500), contrary to
R.S. 28-201(1)(b)
CRIMINAL
ATTEMPT.
Penalty: Class I Misdemeanor.
contrary to the form of the Statutes in such cases
made and provided, and against the peace and dignity
of the State of Nebraska.
9a
STATE OF NEBRASKA, Plaintiff
/s/ Tad D. Eickman
Tad D. Eickman NSBA# 15655
Saline County Attorney
310 West 3rd–P.O. Box 713
Wilber, NE 68465
Tel. (402) 821-2531
Subscribed in my presence and sworn to before me
this 8th day of June, 2010.
/s/ Gregory V. Baumann
County Judge/Magistrate
NAME:
CLEMENTE A. PEREIDA, aka
CLEMENTEA PEREIDA
ADDRESS: [STREET ADDRESS]
Crete, NE 68333
DOB:
July 9, 1971
OLN:
OFFICER/DEPUTY: Sgt. K.Uher, SCSO
APPEARANCE DATE: June 14, 2010 at 9:00 a.m.
SALINE COUNTY
FILED BY THE CLERK
OF THE SALINE COUNTY COURT ON
JUN 08 2010
WILBER, NEBRASKA
_
10a
APPENDIX B – STATUTORY AND
REGULATORY PROVISIONS
8 U.S.C. § 1158. Asylum
***
(b) Conditions for granting asylum
(1) In general
***
(B) Burden of proof
(i) In general
The burden of proof is on the applicant to
establish that the applicant is a refugee, within
the meaning of section 1101(a)(42)(A) of this
title. To establish that the applicant is a refugee
within the meaning of such section, the
applicant must establish that race, religion,
nationality, membership in a particular social
group, or political opinion was or will be at least
one central reason for persecuting the applicant.
(ii) Sustaining burden
The testimony of the applicant may be sufficient
to sustain the applicant’s burden without
corroboration, but only if the applicant satisfies
the trier of fact that the applicant’s testimony is
credible, is persuasive, and refers to specific
facts sufficient to demonstrate that the applicant
is a refugee. In determining whether the
11a
applicant has met the applicant’s burden, the
trier of fact may weigh the credible testimony
along with other evidence of record. Where the
trier of fact determines that the applicant should
provide evidence that corroborates otherwise
credible testimony, such evidence must be
provided unless the applicant does not have the
evidence and cannot reasonably obtain the
evidence.
(iii) Credibility determination
Considering the totality of the circumstances,
and all relevant factors, a trier of fact may base
a credibility determination on the demeanor,
candor, or responsiveness of the applicant or
witness, the inherent plausibility of the
applicant’s or witness’s account, the consistency
between the applicant’s or witness’s written and
oral statements (whenever made and whether or
not under oath, and considering the
circumstances under which the statements were
made), the internal consistency of each such
statement, the consistency of such statements
with other evidence of record (including the
reports of the Department of State on country
conditions), and any inaccuracies or falsehoods
in such statements, without regard to whether
an inconsistency, inaccuracy, or falsehood goes
to the heart of the applicant’s claim, or any other
relevant factor. There is no presumption of
credibility, however, if no adverse credibility
determination is explicitly made, the applicant
or witness shall have a rebuttable presumption
of credibility on appeal.
12a
***
8 U.S.C. § 1182. Inadmissible aliens
(a) Classes of aliens ineligible for visas or admission
Except as otherwise provided in this chapter, aliens
who are inadmissible under the following paragraphs
are ineligible to receive visas and ineligible to be
admitted to the United States:
***
(2) Criminal and related grounds
(A) Conviction of certain crimes
(i) In general
Except as provided in clause (ii), any alien
convicted of, or who admits having committed, or
who admits committing acts which constitute the
essential elements of—
(I) a crime involving moral turpitude (other
than a purely political offense) or an attempt or
conspiracy to commit such a crime, or
(II) a violation of (or a conspiracy or attempt to
violate) any law or regulation of a State, the
United States, or a foreign country relating to a
controlled substance (as defined in section 802
of Title 21),
is inadmissible.
13a
***
8 U.S.C. § 1227. Deportable aliens
(a) Classes of deportable aliens
Any alien (including an alien crewman) in and
admitted to the United States shall, upon the order of
the Attorney General, be removed if the alien is within
one or more of the following classes of deportable
aliens:
***
(2) Criminal offenses
(A) General crimes
(i) Crimes of moral turpitude
Any alien who—
(I) is convicted of a crime involving moral
turpitude committed within five years (or 10
years in the case of an alien provided lawful
permanent resident status under section
1255(j) of this title) after the date of admission,
and
(II) is convicted of a crime for which a sentence
of one year or longer may be imposed,
is deportable.
***
14a
8 U.S.C. § 1229a. Removal proceedings
***
(c) Decision and burden of proof
***
(2) Burden on alien
In the proceeding the alien has the burden of
establishing—
(A) if the alien is an applicant for admission, that
the alien is clearly and beyond doubt entitled to be
admitted and is not inadmissible under section
1182 of this title; or
(B) by clear and convincing evidence, that the
alien is lawfully present in the United States
pursuant to a prior admission.
In meeting the burden of proof under
subparagraph (B), the alien shall have access to
the alien’s visa or other entry document, if any,
and any other records and documents, not
considered by the Attorney General to be
confidential, pertaining to the alien’s admission or
presence in the United States.
(3) Burden on service in cases of deportable aliens
(A) In general
In the proceeding the Service has the burden of
establishing by clear and convincing evidence that,
15a
in the case of an alien who has been admitted to the
United States, the alien is deportable. No decision
on deportability shall be valid unless it is based
upon reasonable, substantial, and probative
evidence.
(B) Proof of convictions
In any proceeding under this chapter, any of the
following documents or records (or a certified copy
of such an official document or record) shall
constitute proof of a criminal conviction:
(i) An official record of judgment and conviction.
(ii) An official record of plea, verdict, and
sentence.
(iii) A docket entry from court records that
indicates the existence of the conviction.
(iv) Official minutes of a court proceeding or a
transcript of a court hearing in which the court
takes notice of the existence of the conviction.
(v) An abstract of a record of conviction prepared
by the court in which the conviction was entered,
or by a State official associated with the State’s
repository of criminal justice records, that
indicates the charge or section of law violated, the
disposition of the case, the existence and date of
conviction, and the sentence.
(vi) Any document or record prepared by, or under
the direction of, the court in which the conviction
16a
was entered that indicates the existence of a
conviction.
(vii) Any document or record attesting to the
conviction that is maintained by an official of a
State or Federal penal institution, which is the
basis for that institution’s authority to assume
custody of the individual named in the record.
(C) Electronic records
In any proceeding under this chapter, any record of
conviction or abstract that has been submitted by
electronic means to the Service from a State or
court shall be admissible as evidence to prove a
criminal conviction if it is—
(i) certified by a State official associated with the
State’s repository of criminal justice records as an
official record from its repository or by a court
official from the court in which the conviction was
entered as an official record from its repository,
and
(ii) certified in writing by a Service official as
having been received electronically from the
State’s record repository or the court’s record
repository.
A certification under clause (i) may be by means
of a computer-generated signature and statement
of authenticity.
17a
(4) Applications for relief from removal
(A) In general
An alien applying for relief or protection from
removal has the burden of proof to establish that
the alien—
(i)
satisfies
the
requirements; and
applicable
eligibility
(ii) with respect to any form of relief that is
granted in the exercise of discretion, that the
alien merits a favorable exercise of discretion.
(B) Sustaining burden
The applicant must comply with the applicable
requirements
to
submit
information
or
documentation in support of the applicant’s
application for relief or protection as provided by
law or by regulation or in the instructions for the
application form. In evaluating the testimony of the
applicant or other witness in support of the
application, the immigration judge will determine
whether or not the testimony is credible, is
persuasive, and refers to specific facts sufficient to
demonstrate that the applicant has satisfied the
applicant’s burden of proof. In determining
whether the applicant has met such burden, the
immigration judge shall weigh the credible
testimony along with other evidence of record.
Where the immigration judge determines that the
applicant should provide evidence which
corroborates otherwise credible testimony, such
18a
evidence must be provided unless the applicant
demonstrates that the applicant does not have the
evidence and cannot reasonably obtain the
evidence.
(C) Credibility determination
Considering the totality of the circumstances, and
all relevant factors, the immigration judge may
base a credibility determination on the demeanor,
candor, or responsiveness of the applicant or
witness, the inherent plausibility of the applicant’s
or witness’s account, the consistency between the
applicant’s or witness’s written and oral
statements (whenever made and whether or not
under oath, and considering the circumstances
under which the statements were made), the
internal consistency of each such statement, the
consistency of such statements with other evidence
of record (including the reports of the Department
of State on country conditions), and any
inaccuracies or falsehoods in such statements,
without regard to whether an inconsistency,
inaccuracy, or falsehood goes to the heart of the
applicant’s claim, or any other relevant factor.
There is no presumption of credibility, however, if
no adverse credibility determination is explicitly
made, the applicant or witness shall have a
rebuttable presumption of credibility on appeal.
***
19a
8 U.S.C. § 1229b. Cancellation of removal;
adjustment of status
(a) Cancellation of removal for certain permanent
residents
The Attorney General may cancel removal in the case
of an alien who is inadmissible or deportable from the
United States if the alien—
(1) has been an alien lawfully admitted for
permanent residence for not less than 5 years,
(2) has resided in the United States continuously for
7 years after having been admitted in any status, and
(3) has not been convicted of any aggravated felony.
(b) Cancellation of removal and adjustment of status
for certain nonpermanent residents
(1) In general
The Attorney General may cancel removal of, and
adjust to the status of an alien lawfully admitted for
permanent residence, an alien who is inadmissible or
deportable from the United States if the alien—
(A) has been physically present in the United
States for a continuous period of not less than 10
years immediately preceding the date of such
application;
(B) has been a person of good moral character
during such period;
20a
(C) has not been convicted of an offense under
section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this
title, subject to paragraph (5); and
(D) establishes that removal would result in
exceptional and extremely unusual hardship to the
alien’s spouse, parent, or child, who is a citizen of
the United States or an alien lawfully admitted for
permanent residence.
***
8 C.F.R. § 1240.8. Burdens of proof in removal
proceedings
(a) Deportable aliens. A respondent charged with
deportability shall be found to be removable if the
Service proves by clear and convincing evidence that
the respondent is deportable as charged.
(b) Arriving aliens. In proceedings commenced upon a
respondent’s arrival in the United States or after the
revocation or expiration of parole, the respondent must
prove that he or she is clearly and beyond a doubt
entitled to be admitted to the United States and is not
inadmissible as charged.
(c) Aliens present in the United States without being
admitted or paroled. In the case of a respondent
charged as being in the United States without being
admitted or paroled, the Service must first establish
the alienage of the respondent. Once alienage has been
established, unless the respondent demonstrates by
clear and convincing evidence that he or she is lawfully
in the United States pursuant to a prior admission, the
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respondent must prove that he or she is clearly and
beyond a doubt entitled to be admitted to the United
States and is not inadmissible as charged.
(d) Relief from removal. The respondent shall have the
burden of establishing that he or she is eligible for any
requested benefit or privilege and that it should be
granted in the exercise of discretion. If the evidence
indicates that one or more of the grounds for
mandatory denial of the application for relief may
apply, the alien shall have the burden of proving by a
preponderance of the evidence that such grounds do
not apply.
Neb. Rev. Stat. § 28-201 (2008).
Criminal attempt; conduct; penalties
(1) A person shall be guilty of an attempt to commit a
crime if he or she:
***
(b) Intentionally engages in conduct which, under
the circumstances as he or she believes them to be,
constitutes a substantial step in a course of conduct
intended to culminate in his or her commission of
the crime.
***
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Neb. Rev. Stat. § 28-608 (2008).
Criminal impersonation; penalty; restitution
(1) A person commits the crime of criminal
impersonation if he or she:
(a) Assumes a false identity and does an act in his
or her assumed character with intent to gain a
pecuniary benefit for himself, herself, or another 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 for himself, herself, or another
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 or permission of
another and with the intent to deceive or harm
another:
(i) Obtains or records personal identification
documents or personal identifying information;
and
(ii) Accesses or attempts to access the financial
resources of another through the use of a personal
identification document or personal identifying
information for the purpose of obtaining credit,
money, goods, services, or any other thing of value.
***
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.