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

Supreme Court briefMar 4, 2020

Ask Donna

What actually matters in this document.

Text

No. 19-438

In the Supreme Court of the United States

CLEMENTE AVELINO PEREIDA,

Petitioner,

WILLIAM P. BARR, ATTORNEY GENERAL,

Respondent.

On Writ of Certiorari to the United States Court

of Appeals for the Eighth Circuit

BRIEF AMICUS CURIAE OF IMMIGRATION

REFORM LAW INSTITUTE IN SUPPORT OF

RESPONDENT

CHRISTOPHER J. HAJEC

IMMIGRATION REFORM

LAW INSTITUTE

25 Massachusetts Av NW

Suite 335

Washington, DC 20001

(202) 232-5590

chajec@irli.org

LAWRENCE J. JOSEPH

Counsel of Record

1250 Connecticut Av NW

Suite 700-1A

Washington, DC 20036

(202) 355-9452

lj@larryjoseph.com

QUESTION PRESENTED

Under the Immigration and Nationality Act, 8

U.S.C. 1101 et seq., an alien who has been convicted

of certain offenses, including a “crime involving moral

turpitude,” is statutorily ineligible for discretionary

cancellation of removal. 8 U.S.C. 1182(a)(2)(A)(i)(I),

1227(a)(2)(A)(i)(I); see 8 U.S.C. 1229b(b)(1)(C). In

determining an alien’s eligibility for cancellation of

removal or any other “relief or protection from

removal,” the alien bears the burden of proof to

establish that he “satisfies the applicable eligibility

requirements.” 8 U.S.C. 1229a(c)(4)(A)(i); see 8 C.F.R.

1240.8(d). The question presented is:

Whether an alien carries his burden of proving his

eligibility for cancellation of removal where the alien

has been convicted under a statute defining multiple

crimes, at least some of which would constitute

disqualifying offenses, but the record is inconclusive

as to which crime formed the basis of the alien’s

conviction.

TABLE OF CONTENTS

Question Presented ..................................................... i

Table of Contents ....................................................... ii

Table of Authorities................................................... iii

Interest of Amicus Curiae .......................................... 1

Statement of the Case ................................................ 2

Constitutional Background ................................. 2

Legislative and Regulatory Background............. 2

Factual Background............................................. 3

Summary of Argument............................................... 3

Argument .................................................................... 4

I. The Eighth Circuit correctly analyzed the

case. ...................................................................... 4

A. A “modified categorical approach” applies

to divisible statutes. ...................................... 4

B. The petitioner cannot challenge 8 C.F.R.

§ 1240.8(d) as ultra vires under the INA. ..... 5

C. 8 C.F.R. § 1240.8(d) correctly allocates

the burden of proof for the modified

categorical approach. ..................................... 6

II. Imposing the burden of proof on the

Government is unworkable. ................................ 8

Conclusion .................................................................. 9

TABLE OF AUTHORITIES

Cases

Adamo Wrecking Co. v. United States,

434 U.S. 275 (1978) ............................................ 5-6

Am. Rd. & Transp. Builders Ass’n v. EPA,

705 F.3d 453 (D.C. Cir. 2013) ............................... 5

Arizona v. United States,

567 U.S. 387 (2012) ............................................... 6

Chevron, U.S.A., Inc. v. NRDC,

467 U.S. 837 (1984) ........................................ 3, 6-7

DeCanas v. Bica,

424 U.S. 351 (1976) ............................................... 2

FTC v. Morton Salt Co.,

334 U.S. 37 (1948) ................................................. 7

Javierre v. Cent. Altagracia,

217 U.S. 502 (1910) ............................................... 7

Murphy Explor’n & Prod’n Co. v. Dep’t of Interior,

270 F.3d 957 (D.C. Cir. 2001) ............................... 5

New York v. United States DOJ,

Nos. 19-267(L), 19-275(con), 2020 U.S. App.

LEXIS 5831 (2d Cir. Feb. 26, 2020) .................. 8-9

NLRB v. Ky. River Cmty. Care, Inc.,

532 U.S. 706 (2001) ............................................... 7

Pereida v. Barr,

916 F.3d 1128 (8th Cir. 2019) ............................... 4

United States ex rel. Knauff v. Shaughnessy,

338 U.S. 537 (1950) ............................................... 2

United States v. California,

No. 19-532 (U.S.) ................................................... 8

iii

United States v. Dickson,

40 U.S. (15 Pet.) 141 (1841) .................................. 7

Statutes

U.S. CONST. art. I, §8, cl. 4 ......................................... 2

Immigration and Naturalization Act,

8 U.S.C. §§1101-1537 .............................. 2-3, 5-7, 9

8 U.S.C. § 1229a(c)(4)(A)(i) .................................... 3, 6

8 U.S.C. § 1229b(b)(1)(C) ........................................ 2-3

8 U.S.C. § 1252(a)(2)(D) ............................................. 5

8 U.S.C. § 1252(e)(3)(A) ........................................... 5-6

8 U.S.C. § 1252(e)(3)(B) ........................................... 5-6

42 U.S.C. § 7607(b)(1) ................................................ 5

Driver’s License Access and Privacy Act, S.B.

1747-B, 247th Legis. Sess. (N.Y. 2019) ................ 8

Rules, Regulations and Orders

S.Ct. Rule 37.6 ............................................................ 1

8 C.F.R. § 1240.8(d) ......................................... 3, 5-6, 8

62 Fed. Reg. 444 (Jan. 3, 1997) .................................. 3

62 Fed. Reg. 10,312 (Mar. 6, 1997) ............................ 3

No. 19-438

In the Supreme Court of the United States

CLEMENTE AVELINO PEREIDA,

Petitioner,

WILLIAM P. BARR, ATTORNEY GENERAL,

Respondent.

On Writ of Certiorari to the United States Court

of Appeals for the Eighth Circuit

INTEREST OF AMICUS CURIAE

The Immigration Reform Law Institute1 (“IRLI”)

is a nonprofit 501(c)(3) public interest law firm

dedicated both to litigating immigration-related cases

in the interests of United States citizens and to

assisting courts in understanding federal immigration

law. IRLI has litigated or filed amicus curiae briefs in

a wide variety of immigration-related cases. For more

than twenty years the Board of Immigration Appeals

has solicited supplementary briefing, drafted by IRLI

staff, from the Federation for American Immigration

Reform, of which IRLI is a supporting organization.

Amicus files this brief with all parties’ written consent.

Pursuant to Rule 37.6, counsel for amicus authored this brief in

whole, no party’s counsel authored this brief in whole or in part,

and no person or entity — other than amicus and its counsel —

contributed monetarily to preparing or submitting the brief.

STATEMENT OF THE CASE

The petitioner seeks cancellation of the removal

proceedings against him and, thus, sues the Attorney

General of the United States (the “Government”) to

establish his entitlement to that relief on the theory

that his conviction for identity theft under a Nebraska

statute does not necessarily establish that he acted

with intent to defraud (that is, that he committed a

crime of moral turpitude).

Constitutional Background

Under U.S. CONST. art. I, §8, cl. 4, Congress has

plenary power over immigration, DeCanas v. Bica,

424 U.S. 351, 354 (1976), which Congress can and, in

part, has delegated to the Executive Branch. United

States ex rel. Knauff v. Shaughnessy, 338 U.S. 537,

543-44 (1950).

Legislative and Regulatory Background

The Immigration and Naturalization Act, 8 U.S.C.

§§1101-1537 (“INA”), sets the terms under which

aliens lawfully may enter and remain in the United

States. As relevant here, the INA provides expedited

removal for certain aliens convicted of crimes, but also

provides the Attorney General with discretion to

cancel removal for less serious crimes:

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 … 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).

8 U.S.C. § 1229b(b)(1)(C). Both the INA itself and the

implementing regulations provide that aliens bear the

burden of establishing their entitlement to relief from

removal. 8 U.S.C. § 1229a(c)(4)(A)(i); 8 C.F.R. §

1240.8(d). The Attorney General promulgated the

implementing rule in 1997, 62 Fed. Reg. 10,312,

10,368 (Mar. 6, 1997), after issuing a proposed rule

and taking comment. 62 Fed. Reg. 444, 491 (Jan. 3,

1997).

Factual Background

IRLI adopts the facts as stated by the Government

brief. See Gov’t Br. at 7-13.

SUMMARY OF ARGUMENT

Under the INA, the modified categorical approach

is appropriate for divisible statutes because it

correctly places the burden of proof on aliens to show

their entitlement to relief from removal by first

identifying their statute of conviction, before the

categorical approach is applied to identify the

comparable federal crime (Section I.A). The INA bars

review of the INA’s implementing regulations outside

of review for unconstitutionality (Section I.B). In any

event, the implementing regulations — which place

the burden on aliens in this context — are correct

under the INA itself, under the rules of statutory

construction on eligibility for exemptions generally,

and under the requirement of Chevron, U.S.A., Inc. v.

NRDC, 467 U.S. 837, 842-43 (1984), for deference to

agencies’ interpretations of statutes that they

administer (Section I.C).

Finally, the petitioner’s proposed rival allocation

of the burden of proof to the Government would be

unworkable: several states already openly flout

federal enforcement authority over immigration;

putting the burden on the Government to produce

evidence of state-court proceedings would give states

the power of nullification over federal enforcement

efforts and thus defeat the goal of uniformity in the

enforcement of our immigration laws (Section II).

ARGUMENT

I. THE EIGHTH CIRCUIT CORRECTLY

ANALYZED THE CASE.

This Court should affirm the Eighth Circuit’s use

of the “modified categorical approach” for “divisible

statutes” of conviction. The nature of the petitioner’s

crime of conviction cannot be ascertained from the

record the petitioner provided to the agency, and he

bore the burden of proving his entitlement to an

exemption from removal. Because he failed to meet

that burden, the Eighth Circuit correctly denied his

petition for review.

A. A “modified categorical approach”

applies to divisible statutes.

Both the Board of Immigration Appeals and the

Eighth Circuit found Nebraska’s identify-theft statute

divisible (that is, it contains multiple crimes, some —

such as fraud — evincing moral turpitude and others

not) and used the modified categorical approach to

find that the petitioner failed to carry his burden of

proving his eligibility for cancellation of removal.

Pereida v. Barr, 916 F.3d 1128, 1130-31 (8th Cir.),

cert. granted 140 S. Ct. 680 (2019). As the Government

explains, in asking this Court to expand the

categorical approach to cover both an identification of

an alien’s state crime of conviction and a

determination of whether that crime is a disqualifying

one, the petitioner conflates two distinct issues.

Resp.’s Br. at 33. The categorical approach applies

only to the second issue. The first issue remains an

evidentiary one, on which the alien bears the burden

of proof.

B. The petitioner cannot challenge 8 C.F.R.

§ 1240.8(d) as ultra vires under the INA.

Although the INA allows “review of constitutional

claims or questions of law raised upon a petition for

review,” it does not allow systemic review of the INA’s

implementing regulations. Compare 8 U.S.C.

§ 1252(a)(2)(D) with id. § 1252(e)(3)(A)-(B). The

petitioner cannot, therefore, challenge 8 C.F.R.

§ 1240.8(d) on non-constitutional bases such as the

rule’s failure to conform to the INA.

To be sure, courts sometimes allow what would be

a time-barred direct challenge to a rule “apart from

the original rulemaking… when [a] rule is brought

before [a] court for review of [agency] action applying

it.” Murphy Explor’n & Prod’n Co. v. Dep’t of Interior,

270 F.3d 957, 958-59 (D.C. Cir. 2001). But that line of

cases is inapposite in the face of a statute precluding

or channeling review. Am. Rd. & Transp. Builders

Ass’n v. EPA, 705 F.3d 453, 457 (D.C. Cir. 2013)

(Kavanaugh, J.). Like the Clean Air Act in then-judge

Kavanaugh’s decision, the INA precludes systemic

review and channels it to the federal courts in the

District of Columbia Circuit. Compare 42 U.S.C.

§ 7607(b)(1) with 8 U.S.C. § 1252(e)(3)(A)-(B). Such

statutes evince “the twin congressional purposes of

insuring that the substantive provisions of the

standard would be uniformly applied and interpreted

and that the circumstances of its adoption would be

quickly reviewed by a single court intimately familiar

with administrative procedures.” Adamo Wrecking

Co. v. United States, 434 U.S. 275, 284 (1978). If

anything, national uniformity is even more important

for immigration law than for Clean Air Act emission

standards. See, e.g., Arizona v. United States, 567 U.S.

387, 394-95 (2012) (quoting U.S. CONST. art. I, § 8, cl.

4 on the congressional power to “‘establish an uniform

Rule of Naturalization’”).

As with the Clean Air Act, the INA requires that

all challenges to systemic INA rules be brought in the

District of Columbia, 8 U.S.C. § 1252(e)(3)(A), within

60 days of a rule’s promulgation. Id. § 1252(e)(3)(B).

This Court should not allow the circumvention of

statutes that preclude systemic review.

C. 8 C.F.R. § 1240.8(d) correctly allocates

the burden of proof for the modified

categorical approach.

Even if the petitioner could challenge the merits

of 8 C.F.R. § 1240.8(d), that challenge would fail for

three reasons: (1) the regulation correctly reflects the

INA, (2) the regulation and the INA reflect the basic,

blackletter law that those seeking an exemption bear

the burden of establishing their entitlement to that

exemption, and (3) the regulation warrants deference

under Chevron. Each reason is independently fatal to

the petitioner’s position.

First, the INA itself expressly provides 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.” 8

U.S.C. § 1229a(c)(4)(A)(i). The regulation thus fits

comfortably within the INA’s plain terms.

Second, even if the INA did not expressly give the

alien the burden of proof, Congress enacts statutes

against the background rule that those who claim an

exemption bear the burden of proving their entitlement to that exemption:

[T]he general rule of statutory construction

that the burden of proving justification or

exemption under a special exception to the

prohibitions of a statute generally rests on

one who claims its benefits, requires that

respondent undertake this proof [here].

FTC v. Morton Salt Co., 334 U.S. 37, 44-45 (1948)

(citing Javierre v. Cent. Altagracia, 217 U.S. 502, 50708 (1910) and cases cited therein); Javierre, 217 U.S.

at 508 (“those who set up such exception must prove

it”); accord NLRB v. Ky. River Cmty. Care, Inc., 532

U.S. 706, 711 (2001). As this Court put it in an early

case, “those who set up any such exception, must

establish it as being within the words as well as

within the reason thereof.” United States v. Dickson,

40 U.S. (15 Pet.) 141, 165 (1841). Moreover, the Court

described this as “the general rule of law which has

always prevailed, and become consecrated almost as a

maxim in the interpretation of statutes.” Id. Under

our legal tradition, it is entirely unsurprising that

aliens bear the burden of proving their entitlement to

exemptions from the INA to forgive their criminal

convictions.

Third, even if there were some ambiguity — and

there is not — this Court should afford deference to

the Government’s interpretation of the INA. Chevron,

467 U.S. at 842-43; see also Ky. River Cmty. Care, 532

U.S. at 713 (applying Chevron deference). In short,

this Court should reject the petitioners’ invitation to

overturn or ignore 8 C.F.R. § 1240.8(d).

II. IMPOSING THE BURDEN OF PROOF ON

THE GOVERNMENT IS UNWORKABLE.

As the Attorney General explains, the burden of

proof belongs with the alien, who has the incentive

and access to preserve the records that might answer

the questions posed by the modified categorical

approach. See Resp.’s Br. at 46-47. Recalling that the

issue here is whether criminal aliens should remain

in the United States, the policy arguments pressed by

the petitioner and his amici fall short.

One group of amici argue that “even where

misdemeanor records once existed, they may have

been destroyed or may be otherwise inaccessible.”

Nat’l Ass’n of Crim. Def. Lawyers Amici Br. at 13-16.

While amicus IRLI respectfully submits that possible

loss of relevant records is the alien’s risk and burden,

it also bears emphasizing that putting the burden on

the federal Government would be completely unfair:

too many states already flout immigration laws and

would thus likely destroy such records expressly to

prevent the Government’s access to them.

While the intentional shielding of illegal aliens

may not be a problem in Nebraska, it is a problem in

many states. See, e.g., United States v. California, No.

19-532 (U.S.) (petition for a writ of certiorari to review

state laws designed to shield illegal aliens from

detection); Driver’s License Access and Privacy Act,

S.B. 1747-B, 247th Legis. Sess. (N.Y. 2019) (New York

law shielding state driver’s license records from

federal immigration enforcement); New York v.

United States DOJ, Nos. 19-267(L), 19-275(con), 2020

U.S. App. LEXIS 5831, at *4 (2d Cir. Feb. 26, 2020)

(“States and localities … enforce[] … their own laws

[to] adopt policies to extricate themselves from,

hinder, or even frustrate the enforcement of federal

immigration laws”). Placing the burden of proof on the

federal Government would balkanize immigration

enforcement in the United States — viz., between

states like California and New York and states like

Nebraska — because it would empower the former

group of states to frustrate or nullify the federal

Government’s plenary immigration powers. This

Court should not enable these states to take yet

further unconstitutional actions to thwart federal

efforts to enforce the INA.

CONCLUSION

The Court should affirm the Court of Appeals.

March 4, 2020

Respectfully submitted,