Amicus Curiae Brief — Clemente Avelino Pereida, Petitioner v. Robert M. Wilkinson, Acting Attorney General

No. 19-438

================================================================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------CLEMENTE AVELINO PEREIDA,

Petitioner,

v.

WILLIAM P. BARR, ATTORNEY GENERAL

OF THE UNITED STATES,

Respondent.

-----------------------------------------------------------------On Writ Of Certiorari To The

United States Court Of Appeals

For The Eighth Circuit

-----------------------------------------------------------------BRIEF OF IMMIGRATION LAW PROFESSORS

AS AMICI CURIAE IN SUPPORT OF PETITIONER

-----------------------------------------------------------------ALINA DAS

Counsel of Record

NANCY MORAWETZ

WASHINGTON SQUARE LEGAL

SERVICES, INC.

245 Sullivan Street, 5th Floor

New York, NY 10012

(212) 998-6467

alina.das@nyu.edu

Counsel for Amici Curiae

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

STATEMENT OF INTEREST .............................

1

SUMMARY OF ARGUMENT ..............................

2

ARGUMENT ........................................................

5

I.

The Categorical Approach Is A Legal Inquiry That Courts Have Applied Consistently For Over A Century, Irrespective Of

The Burden Of Proof .................................

5

A. The categorical approach is a legal inquiry that focuses solely on the minimum conduct necessarily required for

a conviction ..........................................

5

B. Throughout its history, the categorical

approach has been applied to assess

the immigration consequences of convictions irrespective of which party

carries the burden of proof ..................

8

1. Conviction bars originated in exclusion cases in which the noncitizen bears the burden of proof, and

the categorical approach has applied interchangeably in cases of

exclusion and deportation ..............

9

2. The categorical approach for analyzing convictions was well established before Congress introduced

forms of relief with criminal bars

and has long formed the basis for

evaluating the applicability of criminal bars to relief without regard to

the burden of proof ......................... 15

ii

TABLE OF CONTENTS—Continued

Page

II.

The Government’s Position Turns The Categorical Approach On Its Head And Results

In The Very Harms That The Categorical

Approach Is Designed To Avoid In The Immigration Context ..................................... 19

CONCLUSION..................................................... 26

APPENDIX

List of Amici Curiae ...................................................1a

iii

TABLE OF AUTHORITIES

Page

CASES

Bustamante-Barrera v. Gonzalez, 447 F.3d 388

(5th Cir. 2006)..........................................................22

Descamps v. United States, 570 U.S. 254 (2013) ..........6

Fajardo v. Att’y Gen., 659 F.3d 1303 (11th Cir.

2011) ........................................................................25

Gerbier v. Holmes, 280 F.3d 297 (3d Cir. 2002) ..........22

Hernandez-Cruz v. Holder, 651 F.3d 1094 (9th

Cir. 2011) .................................................................21

I.N.S. v. St. Cyr, 533 U.S. 289 (2001) ..........................21

Immigration Laws—Offenses Involving Moral

Turpitude, 37 Op. Atty. Gen. 293 (1933) .................13

Jean-Louis v. Att’y Gen., 582 F.3d 462 (3d Cir.

2009) ........................................................................21

Judulang v. Holder, 565 U.S. 42 (2011) .....................25

Lorillard v. Pons, 434 U.S. 575 (1978) ..........................8

Martinez v. Mukasey, 551 F.3d 113 (2d Cir. 2008) ........ 7

Mathis v. United States, 136 S. Ct. 2243 (2016) ..........6

Matter of B –, 4 I&N Dec. 493 (BIA 1951) .................14

Matter of C –, 2 I&N Dec. 220 (BIA 1944) .................16

Matter of Franklin, 20 I&N Dec. 867 (BIA 1994) ......14

Matter of L –, 1 I&N Dec. 1 (BIA 1940) ......................15

Matter of M –, 2 I&N Dec. 196 (BIA 1944) .................16

Matter of Marchena, 12 I&N Dec. 355 (BIA 1967) ....... 17

iv

TABLE OF AUTHORITIES—Continued

Page

Matter of P –, 3 I&N Dec. 56 (BIA 1947) ....................14

Matter of P –, 6 I&N Dec. 788 (BIA 1955) ..................18

Matter of Pichardo-Sufren, 21 I&N Dec. 330

(BIA 1996) ...............................................................19

Matter of R –, 4 I&N Dec. 176 (BIA 1950) .................14

Matter of R –, 6 I&N Dec. 444 (BIA 1954) .................23

Matter of S –, 2 I&N Dec. 353 (BIA, A.G. 1945) .........14

Matter of S –, 6 I&N Dec. 692 (BIA, A.G. 1955) .........18

Matter of S –, 6 I&N Dec. 769 (BIA 1955) ..................18

Matter of Velazquez-Herrera, 24 I&N Dec. 503

(BIA 2008) ...............................................................25

Matter of Zangwill, 18 I&N Dec. 22 (BIA 1981) ........17

Mellouli v. Lynch, 575 U.S. 798, 135 S. Ct. 1980

(2015) ............................................................. 1, 5, 6, 8

Moncrieffe v. Holder, 569 U.S. 184 (2013) .......... passim

Padilla v. Kentucky, 559 U.S. 356 (2010).............. 20, 21

United States ex rel. Guarino v. Uhl, 107 F.2d

399 (2d Cir. 1939) .............................................. 11, 12

United States ex rel. Mylius v. Uhl, 203 F. 152

(S.D.N.Y. 1913), aff’d, 210 F. 860 (2d Cir.

1914) ................................................................ 2, 10, 11

United States ex rel. Mylius v. Uhl, 210 F. 860 (2d

Cir. 1914) ........................................... 2, 10, 11, 19, 22

United States ex rel. Robinson v. Day, 51 F.2d

1022 (2d Cir. 1931) ..................................................12

v

TABLE OF AUTHORITIES—Continued

Page

United States ex rel. Zaffarano v. Corsi, 63 F.2d

757 (2d Cir. 1933) .............................................. 12, 13

United States v. Hayes, 555 U.S. 415 (2009) ................8

STATUTES AND CONSTITUTIONAL PROVISIONS

8 U.S.C. § 1227 ............................................................24

8 U.S.C. § 1229a ..........................................................24

8 U.S.C. § 1229b ..........................................................24

Act of Mar. 3, 1875, ch. 141, 18 Stat. 477 .....................9

Act of Mar. 3, 1891, ch. 551, 26 Stat. 1084 ...................9

Act to Amend Section 245 of the Immigration

and Nationality Act, and for Other Purposes,

72 Stat. 699 (1958). .................................................17

Alien Registration Act, 54 Stat. 670 (1940) ......... 15, 16

Immigration Act of 1952, 66 Stat. 163 .......................17

U.S. Const. Art. I, § 8 ..................................................22

OTHER AUTHORITIES

Alina Das, The Immigration Penalties of Criminal Convictions: Resurrecting the Categorical

Analysis in Immigration Law, 86 N.Y.U. L.

REV. 1669 (2011).............................................. passim

Charles Gordon & Harry Nathan Rosenfield,

Immigration Law and Procedure (1959) .......... 15, 16

vi

TABLE OF AUTHORITIES—Continued

Page

Jennifer Lee Koh, The Whole Better than the

Sum: A Case for the Categorical Approach to

Determining the Immigration Consequences of

Crime, 26 GEO. IMMIGR. L.J. 257 (2012) .................20

President’s Commission on Immigration and Naturalization, Whom We Shall Welcome (1953) ........16

Rebecca Sharpless, Toward a True Elements

Test: Taylor and the Categorical Analysis of

Crimes in Immigration Law, 62 U. MIAMI L.

REV. 979 (2008)........................................................20

1

STATEMENT OF INTEREST

Amici curiae are 56 professors of law who specialize in immigration law, including its intersection with

administrative and criminal law. Amici have an interest in this Court’s consideration of the historical development and proper application of the “categorical

approach,” which has served as a bedrock principle of

immigration adjudications involving criminal convictions for over a century, including cases in which the

noncitizen has borne the burden of proof. This Court

has cited amici in previous categorical approach cases.

Moncrieffe v. Holder, 569 U.S. 184, 191, 201 (2013) (citing immigration law professors’ amici brief and amici

scholarship); Mellouli v. Lynch, 575 U.S. 798, 135 S. Ct.

1980, 1986-87 (2015) (citing amici scholarship).

Amici submit this brief to provide the Court with

the history and principles behind the categorical approach and to illustrate how the government’s novel

position leads to the harms that the categorical approach is designed to avoid. The names, titles, and

institutional affiliations (for identification purposes

only) of amici are listed in an Appendix.1

------------------------------------------------------------------

1

Pursuant to Rule 37, amici state that no counsel for a party

authored any part of this brief, and no person or entity other than

amici and their counsel made a monetary contribution to the

preparation or submission of this brief. Petitioner and Respondent have consented to the filing of this brief.

2

SUMMARY OF ARGUMENT

For over a century, immigration adjudicators have

applied a categorical approach to determine whether a

person has been “convicted” of an offense triggering immigration consequences. This approach, grounded in

Congress’s requirement that noncitizens be “convicted”

of certain types of offenses to face specified grounds of

deportability, inadmissibility, or bars to relief, has been

affirmed by case after case and repeatedly reenacted

by Congress since it first specified a conviction requirement in the statute in 1875. It first developed in the

context of conviction-based grounds exclusion, where

noncitizens bore the burden of proof. Following the

landmark exclusion case, United States ex rel. Mylius

v. Uhl, 203 F. 152 (S.D.N.Y. 1913), aff ’d, 210 F. 860 (2d

Cir. 1914), federal courts and the agency have consistently applied the categorical approach across all conviction-based consequences in federal immigration law

irrespective of burden.

The categorical approach requires immigration

adjudicators to determine the immigration consequences of a conviction based solely on the minimum

conduct that is necessarily established by the conviction under the applicable criminal statute, not the underlying facts. Where a criminal statute punishes more

than one crime, an adjudicator may look to the record

of conviction to discern whether it specifies the relevant crime. The focus of the inquiry remains the same,

to determine if the minimum conduct that is necessarily established by the conviction triggers adverse

immigration consequences. The examination of the

3

record of conviction has, in modern times, been labeled

as the “modified” categorical approach.

Rather than understanding the modified categorical approach to represent one of several stages

in a singular legal inquiry, the government uses it as a

springboard into a factual inquiry. As such, the Government argues, the burden of proof matters. Where

the burden of proof lies with the noncitizen, as in the

relief eligibility context, the government essentially argues that ambiguity as to the offense of conviction

within a multi-offense criminal statute means that the

noncitizen can be deemed “convicted” of the maximum

conduct covered by the statute—the inverse of how the

categorical approach is supposed to work. The same

would hold under the government’s position for all

adverse, conviction-based immigration consequences

where the immigrant bears the burden of proof: ineligibility for immigration status, admission to the U.S.,

naturalization and mandatory detention. It does not

matter, the government claims, that the immigration

adjudicator cannot conclude as a matter of law that the

individual was necessarily convicted of an offense that

triggers such a bar, only that the individual was unable

to disprove the negative.

The government’s position invites the very disuniformity, arbitrariness, and fundamental unfairness

that the categorical approach is designed to avoid. It

flies in the face of a century of case law that has consistently applied the categorical approach as a legal

inquiry in a variety of contexts, including ones in

which the immigrant bears the burden of proof. It

4

undermines Congress’s choice to rely on convictions,

and not conduct or other factual bases, as the categorical trigger for specific adverse immigration consequences.

This brief is organized in two parts. Part I describes

the century of jurisprudence affirming Congress’s choice

of a categorical approach for the assessment of convictions by immigration adjudicators across contexts,

focusing in particular on the development of the categorical approach in cases where the noncitizen bore the

burden of overcoming conviction-based grounds of exclusion or bars to relief. It describes the consistent application of the approach as a legal inquiry into the

minimum conduct necessarily underlying a conviction, not a factual inquiry that turns on burden allocation. Part II explains the critical role that this

approach plays in ensuring uniformity, predictability,

and fairness in the assessment of convictions in the immigration context. It illustrates how the government’s

approach turns the categorical approach on its head,

undermining the principles underlying the approach

for over a century.

------------------------------------------------------------------

5

ARGUMENT

I.

The Categorical Approach Is A Legal Inquiry

That Courts Have Applied Consistently For

Over A Century, Irrespective Of The Burden

Of Proof.

A. The categorical approach is a legal inquiry that focuses solely on the minimum

conduct necessarily required for a conviction.

The categorical approach is a legal inquiry into the

consequences of criminal convictions that requires an

analysis of the statutory offense, and prohibits consideration of the facts. Its origins in the immigration context go back a century, and it has applied in criminal

sentencing law as well. “Because Congress predicated

deportation ‘on convictions, not conduct’ the approach

looks to the statutory definition of the offense of conviction, not to the particulars of an alien’s behavior.”

Mellouli v. Lynch, 575 U.S. 798, 135 S. Ct 1980, 1986

(2015). Immigration officials must therefore “examine

what the state conviction necessarily involved, not the

facts underlying the case.” Moncrieffe v. Holder, 569

U.S. 184, 190 (2013). In analyzing the statute, “we must

presume that the conviction ‘rested upon [nothing]

more than the least of th[e] acts’ criminalized, and

then determine whether even those acts are encompassed by the generic federal offense.” Id. at 190-91.

The categorical approach refines this legal inquiry

where a statute is “divisible.” If the state conviction involves a statute “that contain[s] several different

6

crimes, each described separately” then the adjudicator “may determine which particular offense the

noncitizen was convicted of by examining the charging

document and jury instructions, or in the case of a

guilty plea, the plea agreement, plea colloquy, or ‘some

comparable judicial record’ of the factual basis for the

plea.” Id.

This analysis of record materials, described in

modern terms as the “modified” categorical approach,

is not an invitation to examine the underlying facts of

the offense. Mellouli, 135 S. Ct. at 1986 n.4 (describing

the modified categorical approach and explaining that

“[o]ff limits to the adjudicator, however, is any inquiry

into the particular facts of the case”). Instead, “the

modified approach serves a limited function: It helps

effectuate the categorical analysis when a divisible

statute, listing potential offense elements in the alternative, renders opaque which element played a part in

the defendant’s conviction.” Descamps v. United States,

570 U.S. 254, 260 (2013); see also Mathis v. United

States, 136 S. Ct. 2243, 2256 (2016). Applying the modified categorical approach, the adjudicator may consult

the record to shed light on “which particular offense

the noncitizen was convicted of ” when assessing the

conviction for its adverse immigration consequences.

Mellouli, 135 S. Ct. at 1986 n.4 (quoting Moncrieffe,

569 U.S. at 191).

The categorical approach allows for the possibility

that, despite these steps, aspects of the noncitizen’s

conviction will remain “opaque.” Descamps, 570 U.S. at

260. In Moncrieffe, this Court addressed ambiguity

7

regarding an indivisible provision of a criminal statute. In Moncrieffe, the issue turned on whether the offense corresponded to a felony or misdemeanor under

the Controlled Substance Act (“CSA”). The Court explained the adjudicator need only answer whether the

person was necessarily convicted of conduct corresponding to the federal immigration provision:

Moncrieffe’s conviction could correspond to either the CSA felony or the CSA misdemeanor.

Ambiguity on this point means that the conviction did not ‘necessarily’ involve facts that

correspond to an offense punishable as a felony under the CSA. Under the categorical approach, then, Moncrieffe was not convicted of

an aggravated felony.

Moncrieffe, 569 U.S. at 194-95.

This conclusion is not limited to the assessment of

an indivisible portion of statute. To the contrary, at all

stages of the categorical approach, the question is

whether a person has necessarily been convicted of an

offense that triggers the adverse immigration consequence. See id.; see also Martinez v. Mukasey, 551 F.3d

113, 122 (2d Cir. 2008) (“Although an alien must show

that he has not been convicted of an aggravated felony,

he can do so merely by showing that he has not been

convicted of such a crime. And . . . under the categorical

approach, a showing that the minimum conduct for

which he was convicted was not an aggravated felony

suffices to do this.”). The stages of the categorical approach—including the divisibility analysis at issue

8

here—are all in aid of the adjudicator addressing that

singular legal question.

B. Throughout its history, the categorical

approach has been applied to assess

the immigration consequences of convictions irrespective of which party

carries the burden of proof.

The categorical approach (and its modified version) have been applied in the immigration context for

over a century. Moncrieffe, 569 U.S. at 191; Mellouli,

135 S. Ct. at 1986; see also Alina Das, The Immigration

Penalties of Criminal Convictions: Resurrecting the

Categorical Analysis in Immigration Law, 86 N.Y.U. L.

REV. 1669 (2011) (describing the historical development and recent application of the categorical approach in immigration law and collecting cases).

Federal cases adopting the categorical approach trace

from 1913 to present, and Congress has continued to

predicate certain adverse immigration consequences

on convictions rather than conduct. See United States

v. Hayes, 555 U.S. 415, 424-25 (2009) (“[W]hen judicial

interpretations have settled the meaning of an existing

statutory provision, repetition of the same language in

a new statute indicates, as a general matter, the intent

to incorporate its . . . judicial interpretations as well.”)

(citations and internal quotations omitted); see also Lorillard v. Pons, 434 U.S. 575, 580 (1978). Many of the

cases applying the categorical approach have arisen in

contexts where noncitizens bear the burden of proof.

9

The application of the categorical approach has

not, however, varied based on the allocation of burden.

To the contrary, the categorical approach was first developed in a context where noncitizens bore the burden

of proof, and has been applied interchangeably across

contexts, irrespective of burden.

1. Conviction bars originated in exclusion cases in which the noncitizen

bears the burden of proof, and the

categorical approach has applied interchangeably in cases of exclusion

and deportation.

Conviction bars first appeared in the context of exclusion laws, which prevented immigrants from entering the U.S. See, e.g., Act of Mar. 3, 1875, ch. 141, § 5, 18

Stat. 477, 477 (excluding “persons who are undergoing

a sentence for conviction in their own country of felonious crimes”); Act of Mar. 3, 1891, ch. 551 § 1, 26 Stat.

1084, 1084 (excluding “persons who have been convicted of a felony or other infamous crime or misdemeanor involving moral turpitude”). These grounds of

exclusion traditionally placed the burden of proof on

the immigrant. For example, when Congress first introduced a conviction-based bar for crimes involving

moral turpitude in 1891, it specified that anyone “convicted of a felony or other infamous crime or misdemeanor involving moral turpitude” shall be excluded

“unless it is affirmatively and satisfactorily shown on

special inquiry that such person does not belong to one

of the . . . excluded classes.” Id.

10

It was in the context of exclusion that courts first

began to develop the categorical approach. The landmark case on the categorical approach, referenced by

this Court in Moncrieffe, 569 U.S. at 191, is United

States ex rel. Mylius v. Uhl. In Mylius, a noncitizen

challenged his exclusion from the United States and

detention on the basis of his prior conviction for criminal libel in England. 203 F. 152, 153 (S.D.N.Y. 1913).

Immigration officials had concluded that the petitioner

had been “convicted” of an offense “involving moral turpitude” by reviewing reports of the trial and the underlying facts that gave rise to his conviction. Id. Judge

Noyes, writing for the federal district court in the

Southern District of New York, concluded that the immigration officials erred by not confining their review

to the “inherent nature” of the statutory offense of

criminal libel, which “depends upon that which must

be shown to establish [the noncitizen’s] guilt.” Id. at

154 (emphasis added). Under this inquiry, the court

held that libel did not necessarily involve moral turpitude, for libel convictions could be obtained where defendants violated the statute without intent or

knowledge. Id. It did not matter that libel could cover

conduct that was base or depraved, only whether it

necessarily did so. Id.

Judge Noyes acknowledged that, under this approach, some immigrants with convictions may be admitted to the U.S. even though the testimony and

evidence underlying their convictions points to turpitudinous conduct. But such is the price of a uniform

standard. As Judge Noyes observed, “testimony is

11

seldom available and to consider it in one case and not

in another is to depart from uniformity of treatment.”

Id. at 153.

The Second Circuit affirmed, holding that Congress did not intend for immigration officers to “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. . . .

this question must be determined from the judgment

of conviction.” United States ex rel. Mylius v. Uhl, 210

F. 860, 863 (2d Cir. 1914). While recognizing “the extreme brutality” of the libel on the facts, the Court observed that it was “dealing with laws designed to

exclude from this country those whose records abroad

are such as to warrant the inference that they are depraved and will continue to belong to the criminal classes.” Id. at 862. Rather than rely on a factual inquiry,

the Court concluded that, “[i]n construing these laws

we should proceed on broad general lines, considering

all persons as equal before the law.” Id. The petitioner

could not be excluded by virtue of his conviction unless

the minimum conduct proscribed by his offense demonstrated moral turpitude, and that was the end of the

inquiry.

Mylius would prove to be the seminal case explicating the categorical approach for all conviction-based

immigration provisions. Das, 86 N.Y.U. L. REV. at 169092. Judge Learned Hand relied upon it in a series of

cases arising in the deportation context, making no

distinction based on burden of proof. See United States

ex rel. Guarino v. Uhl, 107 F.2d 399, 400 (2d Cir. 1939).

12

In Guarino, Judge Hand addressed the issue of

whether a conviction for possession of a “jimmy,” a common burglary tool, with intent to commit a crime was

properly classified as a crime involving moral turpitude. 107 F.2d at 400. Judge Hand focused the inquiry

upon “whether all crimes which [the petitioner] may

intend are ‘necessarily,’ or ‘inherently,’ immoral.” Id.

Judge Hand observed that the statute of conviction

covered conduct that could be “no more than a youthful

prank” born of “curiosity, or a love of mischief.” Id. Focused upon this minimum level of conduct, Judge Hand

stated that “it would be to the last degree pedantic to

hold that [the conviction] involved moral turpitude and

to visit upon it the dreadful penalty of banishment.” Id.

While acknowledging that “other circumstances

[made] it highly unlikely that this alien had possession

of the jimmy for [a] relatively innocent purpose,” Judge

Hand nevertheless honored the minimum conduct test,

holding that “[deportation] officials may not consider

the particular conduct for which the alien has been

convicted; and indeed this is a necessary corollary of

the doctrine itself.” Id.; see also United States ex rel.

Robinson v. Day, 51 F.2d 1022, 1022-23 (2d Cir. 1931)

(Hand, J.).

These early deportation cases also adopted what

is now referred to as the “modified” categorical approach when the noncitizen was convicted under a divisible statute. In a 1933 case, the Second Circuit

assessed whether a noncitizen’s prior conviction for

second degree assault under New York law necessarily

involved moral turpitude. United States ex rel.

13

Zaffarano v. Corsi, 63 F.2d 757 (2d Cir. 1933). Finding

that the state offense defined second degree assault

through five subdivisions, only some of which inherently involved moral turpitude, the court held that immigration officials could look to “the charge

(indictment), plea, verdict, and sentence” to determine

“the specific criminal charge of which the alien is found

guilty and for which he is sentenced.” Id. at 759. The

court further held that the inquiry was limited solely

to this “record of conviction,” permitting immigration

adjudicators to determine only which subsection gave

rise to the noncitizen’s conviction. Id. at 757. The court

reaffirmed the minimum conduct test, holding that

“[t]he evidence upon which the verdict was rendered

may not be considered.” Id. at 759. On rehearing, the

court stated: “If an indictment contains several counts,

one charging a crime involving moral turpitude and

others not, the record of conviction would, of course,

have to show conviction and sentence on the first count

to justify deportation.” Id. at 759. It therefore concluded that the noncitizen was not deportable.

No distinction was made in this early case law on

the basis of burden. In both the exclusion and deportation contexts, the same categorical approach was applied. Indeed, when the Attorney General was first

asked to opine about the proper approach to the assessment of convictions, he adopted the categorical approach in cases of exclusion. In Immigration Laws—

Offenses Involving Moral Turpitude, 37 Op. Atty. Gen.

293 (1933), Attorney General Cummings responded to

an inquiry by the State Department for guidance on

14

how their consular officers should address criminal

grounds of exclusion. Attorney General Cummings

quoted from Judge Noyes’s opinion in Mylius to provide the standard for assessing convictions based on

the conduct necessarily prohibited by the statute, rather than a factual inquiry into the acts underlying the

offense. Id. at 295.

The Board of Immigration Appeals too adopted the

categorical approach soon after its formation. See Matter of S –, 2 I&N Dec. 353 (BIA, A.G. 1945); see also

Matter of B –, 4 I&N Dec. 493, 496 (BIA 1951) (“[T]he

definition of the crime must be taken at its minimum

. . . in a situation where the statute includes crimes

which involve moral turpitude as well as crimes which

do not inasmuch as an administrative body must follow definite standards, apply general rules, and refrain

from going behind the record of conviction.”) (modified

on other grounds by Matter of Franklin, 20 I&N Dec.

867 (BIA 1994)).

Like federal courts, the BIA applied the same legal

inquiry under the categorical approach in the exclusion context. See, e.g., Matter of P –, 3 I&N Dec. 56, 59

(BIA 1947) (applying the categorical approach to assess whether Canadian conviction rendered individual

inadmissible to the U.S., holding that the “crime must

by its very nature and at its minimum, as defined by

statute, involve an evil intent before a finding of moral

turpitude would be justified”); Matter of R –, 4 I&N

Dec. 176, 178-79 (BIA 1950) (applying categorical approach to address whether individual was inadmissible based on German tax conviction, and holding that

15

because “intent to defraud is not an element of the offense” the individual has not been convicted of a crime

involving moral turpitude).

2. The categorical approach for analyzing convictions was well established before Congress introduced

forms of relief with criminal bars

and has long formed the basis for

evaluating the applicability of criminal bars to relief without regard to

the burden of proof.

The categorical approach was well established

by the time Congress first introduced forms of relief

with criminal bars based on a past conviction. The first

forms of relief from deportation did not include

criminal bars. See 6 Charles Gordon & Harry Nathan

Rosenfield, Immigration Law and Procedure (1959)

§§ 7.1(a), 7.3(a) (describing administrative practices of

voluntary departure and preexamination beginning in

1935); Matter of L –, 1 I&N Dec. 1 (BIA 1940) (Seventh

Proviso of the Immigration Act of 1917 authorized

waiver of grounds of inadmissibility for crime involving moral turpitude for returning lawful resident and

nunc pro tunc relief for noncitizens in removal proceedings).

In 1940, Congress enacted the Alien Registration

Act of 1940, which greatly expanded grounds of deportation. Alien Registration Act, 54 Stat. 670, 670-73

(1940). Along with these expanded deportation grounds,

Congress created relief in the form of suspension of

16

deportation for deportable noncitizens, regardless of

their status. The new suspension remedy included bars

based on criminal convictions. Id., § 20; see also Gordon, § 7.9. Congress also created express statutory authority for voluntary departure, but added criminal

bars to that relief. Id., § 7.2; see generally President’s

Commission on Immigration and Naturalization,

Whom We Shall Welcome 208 (1953). Under the 1940

Act, the bars to both suspension and voluntary departure relief included a conviction of a “crime involving

moral turpitude.” 54 Stat. at 671-73 (cross-referencing

section 19(a) of the Immigration Act of 1917, as

amended).

The criminal bars enacted in 1940 came after

more than two decades of established application of

the categorical approach in both exclusion and deportation contexts and without regard to the burden of

proof for those proceedings. Accordingly, as with exclusion, the BIA turned to the categorical approach to

assess whether a conviction fit the ground for disqualification from relief, irrespective of the burden of proof.

Matter of M –, 2 I&N Dec. 196 (BIA 1944) (looking to

text of criminal statute to assess whether crime involved moral turpitude and concluding that noncitizen

was eligible for suspension and voluntary departure

and warranted voluntary departure as a matter of discretion); Matter of C –, 2 I&N Dec. 220 (BIA 1944) (considering what a prosecutor must prove to determine

whether crime involved moral turpitude and finding

that noncitizen was eligible for and should receive suspension of deportation).

17

In 1952, Congress once again altered the criminal

bars for voluntary departure and suspension of deportation. Immigration Act of 1952, 66 Stat. 163, § 244. It

also introduced a definition of good moral character

with bars based on a conviction of a crime involving

moral turpitude within a specified period. Id. § 101(f ).

Later statutes amended these bars and introduced

new forms of relief. Most importantly, in 1958, Congress authorized adjustment of status, a form of relief

that allows persons to regularize their status based on

eligibility for a visa and therefore requires evaluation

of whether the individual is barred based on criminal

grounds of inadmissibility. See Act to Amend Section

245 of the Immigration and Nationality Act, and for

Other Purposes, 72 Stat. 699, 699 (1958).

As Congress has added and revised forms of relief

and bars to relief, the BIA continued to evaluate criminal bars based on a conviction by applying the categorical approach regardless of the burden of proof. See,

e.g., Matter of Zangwill, 18 I&N Dec. 22, 28 (BIA 1981)

(finding eligibility for adjustment of status because

Florida statute of conviction for passing worthless

checks did not require proof of intent to defraud); Matter of Marchena, 12 I&N Dec. 355, 356-57 (BIA 1967)

(applying categorical approach to address whether applicant for adjustment of status was inadmissible and

holding, in the context of a divisible statute and an ambiguous record, that “[i]n determining whether a crime

involved moral turpitude, the definition of a crime

must be taken at its minimum” and that where the

“record does not establish” inadmissibility, the

18

applicant was eligible for discretionary relief ); Matter

of P –, 6 I&N Dec. 788, 790 (BIA 1955) (denying eligibility for suspension based on definition of state manslaughter crime and stating that the Board “ha[s] no

authority to look behind the record to the circumstances surrounding the commission of a crime”).

Historically, the BIA has applied this same categorical approach in relief eligibility cases when the record is incomplete. See, e.g., Matter of S –, 6 I&N Dec.

769, 770 (BIA 1955) (finding that on incomplete record,

voluntary departure could not be denied due to conviction for possession of burglary tools, but denying relief

on other grounds); see also Matter of S –, 6 I&N Dec.

692, 696 (BIA, A.G. 1955) (where noncitizen disclosed

criminal history but “the file . . . does not contain records of convictions,” granting relief without applying

criminal bars). Absent a record of conviction that establishes a bar to eligibility, the cases proceeded to the

merits to determine whether or not to award relief.

*

*

*

Over the years, the categorical approach has become firmly rooted in immigration adjudication across

contexts, wherever Congress chose to predicate consequences on “convicted” conduct. Das, 86 N.Y.U. L. REV.

at 1669 (describing and collecting cases). Several of the

landmark categorical approach cases arose in the context of exclusion where the noncitizen bears the burden of proof, and nothing in this or subsequent history

suggests that the application of the categorical approach in any conviction-based context, including

19

inadmissibility, deportability or eligibility for relief,

varies depending on the burden of proof.

II.

The Government’s Position Turns The Categorical Approach On Its Head And Results

In The Very Harms That The Categorical Approach Is Designed To Avoid In The Immigration Context.

The government ignores the long and consistent

history underlying the categorical approach, and asserts that the modified categorical approach is a factual inquiry whose outcome turns on the burden of

proof. This is wrong and undermines the very purpose

of the categorical approach.

By strictly limiting the analysis to the minimum

conduct required to sustain the conviction, the categorical approach was developed to avoid what would be a

fraught inquiry into the underlying facts of each individual conviction. As courts and the agency have long

noted, immigration adjudicators act in an administrative capacity and are ill-equipped to conduct minitrials into the factual basis of a past criminal conviction.

See, e.g., Mylius, 210 F. at 863; Matter of PichardoSufren, 21 I&N Dec. 330, 335-36 (BIA 1996) (holding

that a factual inquiry into the conduct underlying a

conviction “is inconsistent both with the streamlined

adjudication that a deportation hearing is intended to

provide and with the settled proposition that an Immigration Judge cannot adjudicate guilt or innocence”

and that “the harm to the system induced by the

20

consideration of such extrinsic evidence far outweighs

the beneficial effect of allowing it to form the evidentiary basis of a finding of deportability”). The categorical approach prohibits such an inquiry and directs

immigration adjudicators to rely on the criminal court

adjudication.

By doing so, the categorical approach helps ensure

the predictable, uniform, and just administration of

federal immigration law in determining deportability,

inadmissibility and eligibility for relief from deportation. These principles have influenced the development

of the categorical approach in the immigration context

and continue to underscore its importance today. See

Jennifer Lee Koh, The Whole Better than the Sum: A

Case for the Categorical Approach to Determining the

Immigration Consequences of Crime, 26 GEO. IMMIGR.

L.J. 257, 265-74 (2012) (describing the principles underlying the categorical approach); Das, 86 N.Y.U. L.

REV. at 1725-46 (same); Rebecca Sharpless, Toward a

True Elements Test: Taylor and the Categorical Analysis of Crimes in Immigration Law, 62 U. MIAMI L. REV.

979, 1032-34 (2008) (same).

Several of these rationales have an important constitutional dimension. In light of Padilla v. Kentucky,

for example, the categorical approach plays a critical

role in ensuring that defense attorneys meet their

Sixth Amendment obligations to advise noncitizen defendants about the immigration consequences of criminal convictions. 559 U.S. 356, 359 (2010); see also Das,

86 N.Y.U. L. REV. at 1743-45 (discussing the role of the

categorical approach in ensuring compliance with

21

Padilla); Koh, 26 GEO. IMMIGR. L.J. at 298 (same). As

this Court held in Padilla, “deportation . . . is intimately related to the criminal process.” 559 U.S. at 365;

see also I.N.S. v. St. Cyr, 533 U.S. 289, 322 (2001)

(“There can be little doubt that, as a general matter,

alien defendants considering whether to enter into a

plea agreement are acutely aware of the immigration

consequences of their convictions.”). By pegging immigration consequences to the conviction, the categorical

approach enables defense counsel to advise noncitizen

defendants about the consequences of a given plea and

gives defendants notice of those consequences. See Padilla, 559 U.S. at 368; Hernandez-Cruz v. Holder, 651

F.3d 1094, 1111 (9th Cir. 2011) (departing from categorical approach “would make a mockery of the affirmative obligation that criminal defense attorneys have

to advise their non-citizen clients of the potential immigration consequences of accepting a plea bargain”);

Jean-Louis v. Att’y Gen., 582 F.3d 462, 482 (3d Cir.

2009) (finding that categorical approach’s minimum

conduct test “has provided predictability, enabling aliens better to understand the immigration consequences of a particular conviction”).

By contrast, turning any part of the categorical approach into a factual inquiry that turns on burden allocation upsets the settled expectations and threatens

noncitizens with severe, unanticipated consequences.

Criminal records are often incomplete or unavailable

to individuals, particularly when many years have

passed since the conviction or where the case involved

minor charges. A defense attorney may accurately

22

advise their client at the time of their plea that

their conviction does not carry adverse immigration

consequences and ensure that the plea allocution is

immigration-safe, but when that individual faces deportation ten or twenty years later, that plea allocution

may no longer be available if it had been properly recorded at all. Under the government’s position, that individual’s inadmissibility or eligibility for relief from

deportation may turn entirely on circumstances outside of his or her control. The categorical approach was

designed to prevent these unintended and arbitrary

consequences.

In the same vein, the categorical approach also ensures uniformity in immigration adjudications, another rationale with constitutional underpinnings. See

U.S. Const. Art. I, § 8, cl. 4 (“Congress shall have Power

. . . To establish a uniform Rule of Naturalization”)

(emphasis added); see, e.g., Bustamante-Barrera v.

Gonzalez, 447 F.3d 388, 399 (5th Cir. 2006) (citing

“overarching constitutional interest in uniformity of

federal immigration and naturalization laws”); Gerbier

v. Holmes, 280 F.3d 297, 311 (3d Cir. 2002) (stating that

“the policy favoring uniformity in the immigration context is rooted in the Constitution”). From the earliest

cases, courts and the agency have recognized that the

uniform application of immigration law demands that

the assessment of prior convictions be consistent for

noncitizens vis-à-vis other noncitizens convicted of the

same offense. See, e.g., Mylius, 210 F. at 863 (“It would

be manifestly unjust . . . to exclude one person and admit another where both were convicted of [the same

23

offense], because, in the opinion of the immigration officials, the testimony in the former case showed a more

aggravated offence than in the latter.”); Matter of R –,

6 I&N Dec. 444, 448 n.2 (BIA 1954) (“The [categorical]

rule set forth . . . prevents the situation occurring

where two people convicted under the same specific

law are given different treatment because one indictment may contain a fuller or different description of

the same act than the other indictment; and makes for

uniform administration of law.”).

Under the government’s position, individuals convicted of the same offense would be treated differently

solely because one might have access to a record that

the other does not. The fortuity of whether a noncitizen

may be able to obtain a decades-old plea allocution,

for example, varies across substantively identical

cases, such that noncitizens convicted under the same

statute may receive dramatically different treatment

under this approach. Detained and unrepresented immigrants will be particularly disadvantaged, as will

asylum-seekers fleeing persecution in countries with

few if any documents at all. Given the varied adversarial and nonadversarial contexts in which convictionbased consequences arise in the immigration system,

the categorical approach plays a particularly critical

role in ensuring the uniform application of law. See

Das, 86 N.Y.U. L. REV. at 1734-37 (discussing how conviction assessments are made by immigration judges

and front-line immigration officers alike). The consistent

application of the categorical approach regardless of

24

burden preserves the norms of predictability and uniformity discussed above.

The categorical approach also protects immigrants

from facing disuniform outcomes based on immigration

officials’ charging decisions. Deportation proceedings follow a two-step process. The first step is to determine

removability. In some cases, the government must present a ground of deportability, in which the government bears the burden, see 8 U.S.C. § 1229a(c)(3)(A).

The second step—in which the non-citizen always bears

the burden, see 8 U.S.C. § 1229a(c)(4)(A)—is to determine whether he or she is eligible for, and merits, discretionary relief from deportation. In the context of

lawful permanent residents with drug convictions, the

government can establish a ground of deportability

under either 8 U.S.C. § 1227(a)(2)(B)(i) (“convicted of ”

controlled substance offense) or 8 U.S.C. § 1227(a)(2)(A)(iii)

(“convicted of ” aggravated felony). The latter ground is

also a bar to eligibility for discretionary relief. See 8

U.S.C. § 1229b(a)(3) (to be eligible for cancellation,

noncitizen must “not [have] been convicted of any aggravated felony”).

If the categorical approach were cast aside, and

the outcome of an inquiry into what a noncitizen was

“convicted of ” varied depending on whose responsibility it was to carry the burden of proof, the government could simply charge the noncitizen with a

controlled substance offense at the deportability stage

and aver that the noncitizen has to disprove the aggravated felony at the relief stage. This departure from

the established analysis thus would impose a “layer of

25

arbitrariness” to immigration proceedings, for a noncitizen’s relief eligibility would “hang[ ] on the fortuity

of an individual official’s decision” to charge or not to

charge an aggravated felony at the removal stage. See

Judulang v. Holder, 565 U.S. 42, 57-58 (2011).

Congress’s continued choice to predicate various

immigration consequences on whether a noncitizen

has been “convicted” of an aggravated felony in both

the removal and relief eligibility context—regardless

of burden—demonstrates the continued applicability

of the categorical approach in both contexts. See Fajardo v. Att’y Gen., 659 F.3d 1303, 1309 (11th Cir. 2011)

(“Had there been congressional disagreement with the

courts’ interpretation of the word ‘conviction,’ Congress

could easily have removed the term ‘convicted’ from . . .

the INA during any one of the forty times the statute

has been amended since 1952.”) (citing 8 U.S.C. § 1182

(historical notes)) (emphasis added); Matter of Velazquez-Herrera, 24 I&N Dec. 503 (BIA 2008) (“[W]e

must presume that Congress was familiar with [the

history of the categorical approach] when it made [a

new ground of removal] depend on a ‘conviction.’ ”).

Based on these principles and other norms, courts

and the agency have long applied the categorical approach in the immigration context. These rationales

continue to inform the important role that the categorical approach plays in the immigration adjudicative

system today, and should not vary based on the allocation of burden of proof.

------------------------------------------------------------------

26

CONCLUSION

For the foregoing reasons, amici urge this Court to

reject the government’s position and reaffirm the application of the categorical approach to the inquiry in

this case.

Respectfully submitted,

ALINA DAS

Counsel of Record

NANCY MORAWETZ

WASHINGTON SQUARE LEGAL

SERVICES, INC.

245 Sullivan Street, 5th Floor

New York, NY 10012

(212) 998-6467

alina.das@nyu.edu

Counsel for Amici Curiae

February 2020