Here’s the full brief:

Pereida-Supremes-Amicus-19-438 Amici Brief Former US Immigration Judges

Here’s a summary of our argument:

 

SUMMARY OF ARGUMENT

This brief presents the view of former IJs and BIA members on an issue of vital importance to the functioning of our immigration system: how requiring IJs to assess inconclusive conviction records to determine whether a prior criminal conviction disqualifies a noncitizen from applying for relief from removal is contrary to longstanding application of the categorical approach, will create further delays in an already overburdened immigration system, and will deprive IJs of their discretionary power.

Mr. Pereida is correct that inconclusive state conviction records cannot satisfy the categorical approach’s requirement that the state conviction necessarily establishes federal predicate offenses. Affirming this interpretation of the categorical approach will promote the expeditious and fair adjudication of the hundreds of thousands of cases pending in immigration courts.

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The Government incorrectly asserts that when the conviction record is inconclusive as to whether a conviction was for a disqualifying offense, a noncitizen does not carry his or her burden of proof to show statutory eligibility for relief. That argument is faulty because it would require IJs to conduct an inquiry, which the Government wrongly argues is governed by the Immigration and Nationality Act’s (“INA”) burden of proof allocation, focusing on the facts underlying the conviction. Moreover, rather than aid IJs in resolving cases, the Government’s position would impede the application of the modified categorical approach by forcing IJs to delay the proceedings. IJs will be forced to wait for the noncitizen to obtain and present criminal records that may not even exist or be obtainable and then examine those criminal records to make factual determinations the categorical approach is meant to avoid. The Government’s novel gloss on the modified categorical approach is antithetical to the analysis IJs have employed for decades and would preclude the exercise of discretion essential to the functioning of immigration courts.

Contrary to the Government’s contention, the modified categorical approach does not involve a separate factual inquiry. The requisite analysis is a legal one: whether the conviction rests upon nothing more than the minimum conduct necessary for a conviction. Deviating from the categorical approach’s sole focus on a direct and uncomplicated comparison between state and federal offenses, as the Government would require, threatens to disturb the uniformity of outcomes in similar circumstances that the categorical approach safeguards. Mr. Pereida’s interpretation of

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the categorical approach would avoid this undesirable outcome.

For the reasons explained in the balance of this brief, Mr. Pereida’s solution is the correct one. Section I provides a real-world overview of how removal proceedings operate, focusing on the typical sequence of immigration court proceedings, how criminal records are introduced and considered, and the limited ability of noncitizens (many of whom are detained during such proceedings) to procure relevant records. Section II discusses the administrability of the categorical approach and its modified variant, highlighting the benefits of the approach, how Mr. Pereida’s position is in harmony with the way in which IJs apply the approach to reach just results, and how the Government’s interpretation would impede the workings of immigration courts. Finally, Section III explains how the Government’s position would curtail IJs’ discretionary power to analyze the facts of each case to reach a just result.

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Many, many, many thanks to David G. Keyko, Counsel of Record, Robert L. Sills, Matthew F. Putorti, Stephanie S. Gomez, Jihyun Park and the rest of the amazing pro bono team over at Pillsbury for their outstanding and timely research and writing.

And, as always, it’s a privilege and an honor to be listed with the rest of my friends and colleagues on our Round Table of Former Immigration Judges!

Due Process Forever!

 

PWS

02-07-20