Pereida v. Barr

HOW SHOULD COURTS INTERPRET DIVISIBLE STATUTES?

Petitioner Clemente Avelino Pereida (“Pereida”) claims that he is eligible for cancellation of removal because his state-level criminal conviction does not necessarily constitute a crime involving moral turpitude under the Immigration and Nationality Act of 1940 (“INA”). Brief of Petitioner at 15. Pereida maintains that, under the categorical approach to interpreting divisible statutes, the Court must focus on “the legal question of what a conviction necessarily established” (emphasis in original). Id. at 16. Accordingly, Pereida asserts that the Court should presume he committed only the least of the acts that could have led to his conviction under Nebraska Revised Statute § 28-608 to determine if he committed a CIMT. Id. at 16. Here, Pereida argues that his conviction is ambiguous, so it cannot “necessarily” constitute a CIMT. Id. at 18. While CIMTs require a culpable mental state (essentially, a “guilty mind”), Pereida points out that not all the crimes in § 28-608 include a mental state and that the Nebraska state court did not specify whether he was convicted of a crime with a mental state element. Id. Pereida continues that “a conviction under this statute” does not necessarily indicate that he acted with the requisite mental state, so the Court should presume that he did not. Id. Further, Pereida notes that he was charged with all the crimes listed within § 28-608 and pleaded no contest, so he was not convicted of a specific crime. Id. at 18–19. Therefore, based on the categorical approach, Pereida concludes that “the only ‘legal certainty’ about the conviction . . . is that it stands for the ‘minimum conduct criminalized by the state statute,’” which is not a CIMT. Id. at 19.

Pereida acknowledges that the “lease-acts-criminalized” presumption is rebutted if the record of conviction conclusively establishes that he was convicted of a crime listed within § 28-608 that constitutes a CIMT. Id. at 17. Pereida claims, however, that this “modified” categorical approach to analyzing a noncitizen’s conviction under a divisible statute is not meaningfully different from the traditional categorical approach. Id. at 27. Pereida argues that the modified approach can only rebut the least-acts presumption if “the record of conviction of the predicate offense necessarily establishes” the noncitizen’s conviction of a CIMT, so even under the modified approach, an ambiguous conviction still only necessarily establishes the least of the crimes under the state statute. Id. at 28–29. Pereida quotes the Ninth Circuit for the proposition that, because the test relies on necessary conditions, “the documents either show that the [noncitizen] was convicted of a disqualifying offense under the categorical approach, or they do not.” Id. at 29–30.

Respondent Attorney General William P. Barr (“Barr”) argues that Pereida incorrectly applied the categorical approach. Brief of Respondent, Attorney General William P. Barr at 21–23. Barr explains that an indivisible statute “sets out a single . . . set of elements to define a single crime,” whereas a divisible statute defines multiple crimes with multiple elements. Id. at 23–24. The “least-acts” presumption, Barr continues, only applies when courts analyze the specific crime within the divisible statute, not the whole of the divisible statute as the Court must do here. Id. at 32–33. Indeed, Barr explains that a court must undertake two separate steps when analyzing a divisible statute: first, if possible, a court must identify the relevant crime “for which the defendant was convicted,” and second, the court must determine whether that crime is a disqualifying offense. Id. at 33. Barr maintains that the least-acts presumption applies only after the court has identified the relevant crime within the divisible statute. Id. at 34–35. Here, Barr agrees that Pereida’s conviction is ambiguous because it is unclear which crime Pereida was convicted of committing. Id. at 24. Therefore, Barr argues that the Court cannot apply the least-acts presumption to determine whether Pereida’s conviction is a CIMT because it has not yet been determined which crime he was convicted of committing. Id. at 34.

Accordingly, Barr contends that if Pereida cannot prove which part of a divisible statute he was convicted of committing, then the court cannot determine the noncitizen’s eligibility for cancellation of removal by the normal operation of the categorical approach. Id. at 23–24. In situations like this, Barr claims that the “modified” categorical approach is necessary because it allows a court to examine, among other things, “the indictment, jury instructions, or plea agreement and colloquy” to determine which crime the noncitizen was actually convicted of committing. Id. at 24–25. Barr maintains that, if a noncitizen is unable to use this evidence to prove they were not convicted of a disqualifying offense, the noncitizen is ineligible for cancellation of removal. Id. at 26. Barr then explains that the lower courts, all following the modified approach, have found that § 28-608 is divisible, not all crimes within § 28-608 are CIMTs, Pereida has the burden to prove he was not convicted of a CIMT, and Pereida failed to do so. Id. at 28–29. Barr concludes that because the state judge did not clarify which particular state crime Pereida was convicted of and Pereida did not submit evidence to clarify the point, then he is not eligible for cancellation of removal. Id. at 30.

BURDEN OF PROOF

Pereida argues that he does not have the burden of proving his crime of conviction under § 28-608 because a burden of proof resolves questions of fact and not questions of law. Brief of Petitioner at 20. Pereida acknowledges that he has the burden of proof with respect to resolving inquiries like “who did what, when or where, how or why.” Id. at 21–22. Pereida argues that he met this burden in his cancellation of removal application because, among other things, he submitted “hundreds of pages of evidence” showing that he qualified for cancellation of removal. Id. at 22. On the other hand, Pereida argues that when courts apply the categorical approach, they seek to resolve only questions of law, so there are no uncertain facts for Pereida to prove. Id. at 20. Pereida continues that in this case the categorical approach requires the Court to resolve the “binary” legal question of whether his past conviction “necessarily established a disqualifying offense” (internal quotations omitted). Id. at 22. Pereida contends that this is true under the modified-categorical approach as well. Id. at 26. This approach, Pereida maintains, is a tool that helps courts to apply the categorical approach: it permits courts to review the record of conviction to determine whether a conviction is necessarily a disqualifying offense. Id. at 26–27. Crucially, Pereida asserts that this is still a binary legal question that does not involve any factual question triggering Pereida’s burden of proof. Id. at 26.

Barr counters that, to be eligible for cancellation of removal, Pereida has the burden of proving that he did not commit a CIMT. Brief of Respondent at 17–18. Barr claims that the INA places an affirmative obligation on a noncitizen to “prove by a preponderance of the evidence” that the noncitizen is eligible for cancellation of removal. Id. at 19–20. Where multiple grounds exist for denying a cancellation request, Barr notes that the noncitizen must prove that “such grounds do not apply.” Id. at 21. Additionally, Barr points to the cancellation of removal application, which requires an applicant to provide conviction information such as the name of the underlying offense. Id. at 21. Taken together, Barr claims, the INA and relevant regulations demonstrate that Pereida bears the burden of proving he was not convicted of a disqualifying offense. See id. at 18–20. Further, Barr explains that when a statute is divisible, a court may use the modified categorical approach, which requires a noncitizen to supply court documents to prove that the noncitizen’s crime of conviction is not disqualifying. Id. at 25–26. Here, Barr contends that each lower court determined that the crime of conviction is divisible and that some of the crime’s subsections are disqualifying offenses, so, Barr asserts, Pereida must provide evidence that his conviction was not for a disqualifying offense. Id. at 28–29. Ultimately, Barr concludes that Pereida failed to carry his burden of proof. Id. at 26.

STATUTORY INTERPRETATION

Pereida argues that the Eighth Circuit’s holding that Pereida must prove whether he was convicted of a CIMT is wrong as a matter of statutory interpretation. Brief of Petitioner at 37. The text of the INA, Pereida posits, does not indicate that Congress intended to deviate from the categorical approach or its focus on legal, as opposed to factual, analysis. Id. at 37–39. Pereida supports that claim by pointing to other parts of the INA that deal with crimes related to fraud where Congress specifically requires courts to eschew the categorical approach for a fact- and evidence-based approach. Id. at 38. Similarly, Pereida claims that the statutory context supports his position because Congress understood that courts had used the categorical approach for over a century, and that portions of the INA immediately preceding and succeeding the sections at issue here do not use language which requires noncitizens to prove they were not convicted of a CIMT. Id. at 39–41. Likewise, Pereida asserts that Congress has done nothing throughout the INA’s history to change the categorical approach. Id. at 41–42. Therefore, Pereida concludes that his interpretation of the INA and the categorical approach is correct and that he does not have the burden of proving that his crime of conviction is not an offense that would disqualify him for cancellation of removal. Id.

Barr rebuts, claiming that the plain language of the INA places a burden of proof on a noncitizen to prove that the noncitizen was not convicted of a CIMT. Brief of Respondent at 40–41. Pereida’s argument that Congress should have clearly spoken to alter the categorical approach is thus incorrect, according to Barr, because the INA creates a factual, evidence-based test that a noncitizen must follow to prove that the noncitizen was not convicted of a CIMT. Id. at 41. In fact, Barr argues that the sections Pereida cites as evidence of Congress’ intent to eschew factual tests actually places evidentiary burdens on a noncitizen because those sections require the noncitizen to “submit information or documentation in support of [his] application for [cancellation of removal],” which Barr interprets as requiring Pereida to submit evidence that he was not convicted of a CIMT. Id. at 41–43. Finally, Barr claims that Congress previously removed from the INA a noncitizen’s ability to apply for cancellation for removal if the noncitizen was convicted of a CIMT and added language to the INA requiring noncitizens to prove their eligibility for cancellation of removal, and concludes that this statutory history further supports his contention that noncitizens must prove they were not convicted of CIMTs. Id. at 43–45.