SCOTUS to Consider 'Burden of Proof' for Relief Where Crime Is in Dispute

The statute is clear

By Andrew R. Arthur on December 19, 2019

On December 18, 2019, the Supreme Court granted a petition for writ of certiorari from the Eighth Circuit's decision in Pereida v. Barr. At issue in the case is whether a Mexican national who is applying for cancellation of removal under section 240A(b) of the Immigration and Nationality Act (INA) (known as "42B cancellation") has satisfied his burden of proof for that relief where the alien "has been convicted under a statute defining multiple crimes, at least some of which would constitute disqualifying offenses," but where the record "is inconclusive as to which crime formed the basis of the alien's conviction." It is not even a close case — he has not, by statute.

As the Eighth Circuit Court of Appeals explained in its decision below, Pereida entered the United States illegally in approximately 1995. He is married and has three children. On August 3, 2009, he was placed into removal proceedings by U.S. Immigration and Customs Enforcement and charged with removability (ostensibly for illegal entry). He admitted that he was removable, and applied for 42B cancellation in March 2011 as relief from removal.

To establish eligibility for 42B cancellation, an applicant has to have been physically present in the United States for 10 years before filing the application, prove that he or she has been a person of good moral character during that period, establish that removal would result in "exceptional and extremely unusual hardship" to a qualifying relative, and demonstrate that he or she has not been convicted of an offense under various enumerated grounds of inadmissibility and removability.

One of those grounds of inadmissibility is section 212(a)(2) of the INA, and one of the subclauses therein (212(a)(2)(A)(i)(I) of the INA) renders an alien inadmissible to the United States if the alien has been convicted of a "crime involving moral turpitude" (CIMT), including an attempt to commit such crime.

Therein lies the issue for the court. Pereida was convicted in state court in Nebraska in June 2010 for attempted criminal impersonation, in violation of Neb. Rev. Stat. §§ 28-201 and 28-608 (2008). Section 28-201 is the state's attempt statute. Section 28-608 is a bit less clear.

At the time Pereida was convicted, that statute stated:

(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.

Crimes involving fraud and deceit are generally characterized as CIMTs. Paragraph (c), however, does not require any such turpitudinous intent, however. In analyzing Pereida's conviction, the circuit court applied what is known as "the modified categorical approach".

As I have previously explained, the Supreme Court has authorized this analysis to allow judges to look beyond the black letter of the statute to "the charging paper and jury instructions" in an underlying case, to determine whether a conviction renders an alien removable.

The circuit court reviewed the elements of the criminal record that it had before it to determine under which paragraph of section 28-608(1) Pereida had been convicted, but was unable to reach a conclusion.

That is where section 240(c)(4)(A) of the INA comes into play. It states:

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 applicable eligibility requirements; and

(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. [Emphasis added.]

I am familiar with this provision, having drafted it as part of section 101(d) of the REAL ID Act of 2005, and applied it numerous times as an immigration judge. It means what it says, and is so straightforward that the explanation in the conference report essentially restates the provision:

The new paragraph ... codifies the current requirement that an alien applying for relief or protection from removal bears the burden of satisfying the eligibility requirements for that relief or protection, and also that he or she merits that relief as a matter of discretion, if the relief is discretionary.

That was the law that the circuit court applied in dismissing Pereida's appeal:

Here, then, it is Pereida's burden to establish that his conviction for attempted criminal impersonation is not a CIMT. Yet, as Pereida himself acknowledges and argues, there is no indication of the subsection of the statute under which Pereida was convicted, i.e., that the documents filed by DHS, that included the complaint, are insufficient to clarify the matter. This acknowledgment, however, is not in Pereida's favor.


Our inability to discern the particular crime for which Pereida was convicted forecloses any substantive discussions advanced by Pereida on appeal.

As the Department of Justice (DOJ) noted in its brief before the Supreme Court: "By assigning the burden to the alien, Congress ensured that aliens do not benefit from withholding available evidence that would shed light on which offense an alien was previously convicted of." That is the logical inference to be drawn from section 240(c)(4)(A) of the INA — that the alien, as the criminal defendant, has the best access to the criminal record, given the fact that he or she was involved in the criminal process.

DOJ acceded to the Supreme Court's consideration of the case, however, because there is a lack of consistency among the circuits (a "circuit split") with respect to the effect of such inconclusive records in cases involving alien applicants who are attempting to establish their eligibility for immigration relief.

The Fourth, Sixth, and Tenth Circuit Courts of Appeal have reached the same conclusion as the Eighth in Pereida — that the alien fails to carry his or her burden of proof when the criminal record is inconclusive.

The Ninth Circuit, on the other hand, held en banc in Marinelarena v. Barr: "If the record does not conclusively establish that the noncitizen was convicted of the elements of the generic offense, then she was not convicted of the offense for purposes of the immigration statutes." And, as DOJ noted in its brief, the First Circuit held in Sauceda v. Lynch "that where all existing conviction documents have been proffered, any remaining ambiguity regarding the offense of conviction should be resolved in favor of eligibility for relief."

The statute is clear that Pereida bears the burden of proof to establish that he is eligible for 42B cancellation. Absent conclusive proof that he has not been convicted under the sole paragraph in section 28-608 that is not a CIMT, he is unable to bear his burden of proof under section 240(c)(4)(A) of the INA that he is eligible for 42B. Case closed. Or, it should be.

One final point. More than 10 years have passed since Pereida was first issued a notice to appear, and yet his removal case is still dragging on. Regardless of how the Court rules, one could question whether justice has truly been done.