Courthouse Steps Decision Teleforum: Pereida v. Wilkinson

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Micah Wallen:  Welcome to The Federalist Society's Teleforum conference call.  This afternoon's topic is a Courthouse Steps Decision Teleforum on Pereida v. Wilkinson. The decision was handed down last Thursday, March 4th. My name is Micah Wallen and I'm Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the expert on today's call.

 

      Today, we are fortunate to have with us Brian Fish, who is a member of The Federalist Society's Criminal Law and Procedure Practice Group Executive Committee. After our speaker gives his opening remarks, we'll then go to an audience Q&A. Thank you for sharing with us today, and Brian, the floor is yours.

 

Brian M. Fish:  Thank you very much Micah. I'm always happy to be here and talk about the legal twilight zone that I like to refer to as crimmigration law where, much like the TV show, where criminal law and immigration law meet, and sometimes with bad results.

 

      However today, at least from the government's perspective, they win one. Talking about the case of Pereida v. Wilkinson. If you were tuning in when I gave the Courthouse Steps on this case at the time of oral argument, this was Pereida v. Barr and of course, as they say elections have consequences, one of the consequences of this very entertaining, for lack of a better word, most recent election, Mr. Barr resigned his position shortly before the end of the Trump administration, and thus, the case has been re-stylized Pereida v. Wilkinson. So for those of you keeping score at home, thus the name change.

 

      What was this case about? Again, another crimmigration case. The Court seems to be taking a couple of these every year. And every time you think the Court has hit every possible permutation of the overlap of criminal and immigration law, it comes up with another one.

 

      This particular case involves one Mr. Pereida who -- a short recitation of the facts. Pereida was in immigration proceedings. In other words, he had the government, through the Department of Homeland Security had filed an immigration charging document known as the Notice to Appear, which brings Mr. Pereida into immigration court.  He's then, while the immigration proceedings are commencing, he's charged with a criminal offense in his State of Nebraska. The criminal offense is, he's convicted of something called attempted criminal impersonation. We'll get to what that means in a moment.

 

      But because of that charge, his immigration court attorney admits on the record that that criminal case, if he's convicted, might affect his immigration case and asks for a continuance pending the result in the criminal case. His continuance request is granted. He's then convicted of the attempted criminal impersonation. And then the immigration case comes back and starts anew. And he admits to certain allegations on the Notice to Appear, concedes the charge of removability, and wants relief.

 

      So what he admits to is that he essentially came in illegally. That was the only immigration charge on the Notice to Appear.  The government did not amend their charging document to add something called a crime involving moral turpitude, a CIMT. They simply left the original Notice to Appear as is, and the only offense, the illegal entry.

 

      Pereida wants relief from removal in the form of cancellation of removal. Pereida, or well any alien who wants this form of relief has to show four things. One, at least 10 years of continuous physical presence here in the United States. Two, good moral character. And the most important one for today's case, that he has not been convicted of a crime involving moral turpitude. And finally number four, exceptional and extremely unusual hardship to a qualifying family member. In this case, one of Pereida's children is a United States citizen, that is a qualifying family member, and thus, he would have to show exceptional and extremely unusual hardship to his child if he were to be removed.

 

      So those are the four statutory grounds. The final thing that we have to show is that as a matter of discretion, he should get cancellation. So once you show an immigration court all of those four items, then you essentially have to convince the court that it, as a matter of discretion, should give you relief.

 

      Importantly, in immigration court, the ping-pong if you will of whose burden it is to show this, as opposed to that, literally bounces back and forth across the ping-pong net, sometimes numerous times within the same case. And that is where we come to the majority decision by Justice Gorsuch. As opposed to the dissent of Justice Breyer. We'll get to him in a second.

 

      The Court decision was 5-3. Most recent Justice was not involved in the case, for some reason I'm drawing a blank on her name. It'll come to me in a minute, but anyways, she was not on the Court for oral arguments, and therefore was not involved in the decision. My hunch is, should she have been on the Court, this would have been a 6-3 decision, but again, that's just a hunch. What the case comes down to, again, is whose burden is it to show that he has not been convicted of a crime involving moral turpitude, a CIMT.

 

      Justice Gorsuch, I thought, summed it up nicely towards the end of his relatively brief decision. Justice Gorsuch made the point, and as Federalists, we should all come to love, which is, “Congress was entitled to conclude that uncertainty about an alien's prior conviction should not redound to his benefit. Only that policy choice embodied in terms of the law Congress adopted commands this Court's respect.” That line jumped out at me when I read it. And what a relief to hear a justice on the Supreme Court say, Congress did something. Congress was entitled to do that. It's written in the law. And that's what we should follow.

 

      Unlike what Justice Breyer attempts to do in the dissent, which is, quite frankly a mess. It bounces all over the place. It doesn't make a lot of legal sense. And basically comes down to the facts of Pereida versus the facts of what Pereida did. And we'll get to that in a minute.

 

      Gorsuch's main point is, once a criminal case is concluded, the government in the immigration proceedings has the initial burden to show that the alien is removable. Then the burden shifts to the alien to show that he is entitled to relief from removal. And it's the alien's burden to show all of the four things in cancellation.

 

      Gorsuch's main point is, the dissent would have you believe that even though it's the alien's burden to show the 10-years presence, the good moral character, and the exceptional and extremely unusual hardship, the dissent would have you believe that it's the government's burden to show that the alien has been convicted of a CIMT. And Gorsuch's main point throughout his opinion is simply, that's not what the law says. The law says it's the aliens burden to show that he has not been convicted of a CIMT.

 

      Now why is that ping-pong important? Well, in the statute at hand, the alien was convicted in the State of Nebraska for the attempted criminal impersonation, which is now stylized as Nebraska Statute 28-638. There's an A, B, C, and D in that statute listing four different ways you can commit the offense, but the record before the immigration judge does not show which subsection Pereida was convicted of. We simply don't know.

 

      Now, because of that ambiguity, if you believe Pereida's position and the dissent, that ambiguity is on the government. And because the government can't show which one of those subsections he was convicted of, if any of those subsections are not a crime involving moral turpitude, the Pereida has not been convicted of a CIMT, and therefore is eligible for relief.

 

      In the Nebraska statute, subsections A, B, and D are without much question CIMTs. In other words, subsection A, you assume a false identity. That's a CIMT without much consternation. Subsection B, you pretend to be a representative of some other person. That's a CIMT. D, without authorization, you get somebody's identification and obtain financial resources because of your use of someone else's identity. That's a CIMT. What we have left is subsection C, which is carries on a business without a license. That is not a CIMT.

 

      The actual facts of Pereida's case are that he used a fake social security card to get employment. Well, so certainly, factually anyways, subsection C doesn't apply. And so therefore, whether he was convicted of A, B, or D, doesn't much matter since they're all CIMTs and he was clearly convicted of one of those three because the facts of the criminal case had nothing to do with him starting a business.

 

      So factually, anyways, in the real world, we can say, well, he wasn't convicted of C. Must have been A, B, or D. A, B, and D are all CIMTs. Therefore he was convicted of a CIMT and he's not eligible for cancellation of removal, the end. That's what the immigration judge found. That's what the Board of Immigration Appeals found. And that's what the Eighth Circuit found. And finally, on Thursday, that's what Justice Gorsuch and the majority found.

 

      So in an odd way, this -- the entire immigration proceedings, the government had won at every stage, including at the Supreme Court on Thursday. But Gorsuch's main point is, there's absolutely nothing in the statute which says that the burden to show all of these things is on the alien. There's nothing in the statute to show why subsection -- or assuming number three, that he's not convicted of a CIMT would be on the government to prove. It's the alien's burden to show this.

 

      And quite simply, from my not so humble opinion, it was an easy case. But because of the facts of Pereida's situation, unlike a lot of criminal alien defendants or respondents if you will in immigration court, he is much more sympathetic on the surface than someone who's been convicted of, say, murder, or rape, or armed robbery, something along those lines. This guy simply was convicted of using a fake social security card to get a job while he was in immigration court.

 

      That's not the point. The point is, what did Congress say? And again, as Federalists, we should be happy that the Court listened to what Congress said and followed what they said to come to the conclusion that they did on Thursday. That brings us to Justice Breyer's dissent.

 

      He starts of, literally, in the second paragraph with the sob story, if you will. Mr. Pereida is a citizen of Mexico, not the United States. He has lived in the United States for roughly 25 years. In that time, he and his wife have raised three children, he helped support them by working construction and cleaning. And one of those children is a United States citizen. That's quite literally how Justice Breyer starts his dissent, with those facts. And while they are facts, they totally missed the point of what was Pereida convicted of. Was it a CIMT or not?

 

      Justice Breyer went down the rabbit hole, if you will, of talking about categorical approaches versus modified categorical approaches to determining whether a statute is a CIMT or not. He misses the point of the case and is called out for doing so by Justice Gorsuch in a lengthy footnote in the case.

 

      The main point of this case is not whether a particular statute is a CIMT or not. The main point of this case is what was Pereida convicted of. If we can't tell that, then Pereida can't show that he was not convicted of a CIMT. In other words, Pereida can't prove the negative. And if he can't do that, then so sorry, he's out of luck.

 

      The entire 15, 20 pages of Breyer's dissent missed that main point, which is, it's not whether a particular statute is a CIMT or not. The main point of the case is, what was he convicted of? If he can't show that, then he should lose. And that's the majority decision.

 

      The majority points out the fact that, again as I stated, he was in immigration proceedings when he was charged with this. He had counsel for both the immigration court proceedings, and the criminal case, and he chose to not get a more definitive conviction record. That was his decision. And therefore, because he was represented by competent counsel in both proceedings and did not available himself of getting a clearer criminal court record, because probably it didn't exist, but it could have existed if at the time of the conviction being entered, his attorney was a little more forthcoming in asking that, say 28-638(a) or (b) or (c) or (d) was indicated on the conviction record.

 

      But let's face it, if he had done so, it wouldn't have helped Pereida. Because A, B, and D are CIMTs. My hunch is the criminal court clerk in Nebraska didn't care which subsection Pereida was being convicted of. And Pereida's attorneys didn't want it identified anyways, because that would have probably ended his immigration court, as it is, in the sense that if they had put on the criminal conviction 28-638(a), and not just the generic 638, then case closed. He's done. He's convicted of a CIMT. He's got no immigration court relief. And he should get an order of removal.

 

      So what we have is, again, back into the twilight zone of the overlap between these two legal areas, is Congressional intent and Congressional language and the actual statute that they passed on the one hand, versus a sob story on the other, which is Pereida is a good guy.  He's done nothing wrong but for the obvious illegal entry and but for using a fake social security card to get a job. That but for those things, he should at least be able to get his shot to have his cancellation case heard.

 

      There's no guarantee, even if he had gotten to that point, that his cancellation would have been granted because the exceptional and extremely unusual hardship to the qualifying family member is a very high burden to overcome, supposedly. Although it's not always the case. But supposedly, it's not just the economic hardship for Pereida removed and not having his income, that sort of thing. It has to be something much more substantial than that. And it is a high burden to prove that kind of case.

 

      But here, in this particular case, the Court has ruled that Pereida doesn't even get a chance to have his cancellation attempt even heard because he doesn't qualify for it. Because he can't show that he has not been convicted of a CIMT. So in the ping-pong of crimmigration law, this one has scored a point for the government.

 

      And coincidentally enough, about literally 10 minutes before we went on the air, the Board of Immigration Appeals, the part of the Justice Department -- well the entire immigration system is part of the Justice Department, their Executive Office of Immigration Review, the immigration court, and the Board of Immigration Appeals are both DOJ entities, thus the stylization of Pereida v. Barr and then Wilkinson, but the Board of Immigration Appeals, about 30 minutes ago, came out with an opinion on a case almost identical to this one, in the sense that there was a criminal conviction being used by the government to show that this person was convicted of a CIMT. It had multiple divisible A, B, C, D's, etc. And the Board yet again came out with a decision that said if the alien can't show which one he was convicted of, then the alien has not met his burden to show that he has not been convicted of a CIMT. And therefore, he loses.

 

      So what will happen next, is the case of the Immigration and Customs Enforcement now has a final order of removal. And but for -- back to the election, but for new policy considerations, Mr. Pereida will be in line for removal. But again, elections have consequences. So what'll actually happen to Mr. Pereida remains to be seen.

 

      But at least the Court has shown us that the words do have meanings. And Congressional words have the most meaning of all. Those are the words that we should be following. And that's a good sign for folks who thinks like us, who want Congressional words to have the final meaning, not this whims of the Supreme Court Justices as they blow one way or the other.

 

      So with that, Micah, that gets us to the finalization of this decision and my opening remarks.

 

Micah Wallen:  Absolutely. Thank you Brian. Let's go ahead and open up the floor for any audience questions. And Brian, while we're waiting for any questions from the audience to come in, I wanted to ask what you thought about was going to happen with just immigration cases in general under this new administration? We saw last week that the Supreme Court dismissed some Trump-era cases. How do you think the Supreme Court's going to deal with immigration in the coming cases and in the coming years under this new administration?

 

Brian M. Fish:  Well, with the Court's makeup essentially a six-of-three-conservative majority, the cases that they get, my punch is, their decisions would be more favorable to the government exercising its authority to remove someone. The more of the base problem is, they have to get those cases. And I don't see a Biden administration Justice Department bringing a lot of cases to the Court where the Department of Homeland Security has lost, if you will. And I don't see them fighting a lot of cases where the alien has lost at the circuit court level and has appealed -- or at least filed a cert to the Supreme Court.

 

      I honestly don't see the Biden administration fighting those cases. I think I see a lot of remands and what I also see is a lot of prosecutorial discretion coming down the pike from the White House.

 

      So I think as the Supreme Court, as its currently made up, gets an immigration case, or crimmigration case, because that's where most of the play has been in this field, that they would most likely, again as Justice Gorsuch did, look to the actual statute, as opposed to how a sob story a future Mr. Pereida will have. But I honestly don’t see them getting a lot of cases. As you've mentioned, the government is dismissing a lot of its immigration cases that were pending under the Trump administration. Now they're being dismissed. Or because of new policy considerations, these cases will most likely all off as moot because the Biden administration will give the aliens cancel -- they'll just give them cancellation or temporary protected status. Or at the base level, just prosecutorial discretion and dismiss the immigration case. And they'll just be in the wind, so to speak.

 

      So that's what I see coming in the next few years.

 

Micah Wallen:  All right well no questions coming in from the audience. With that, Brian, is there anything else you'd like to cover before we close today?

 

Brian M. Fish:  No thanks. I think I hit all the main points on this one, Micah. It was, like I said, a fairly niched case that I thought on its face should be easy. And I thought Justice Breyer simply missed the point. Sort of two ships passing in the night. Gorsuch nailed the actual heart of the matter, which is, what was someone convicted of, where as Breyer was talking about something that doesn't come into play if you don't know what he was convicted of. And two ships passing in the night. And I think the majority nailed it and just looked at the law and said, the end.

 

Micah Wallen:  All right, well, on behalf of The Federalist Society, I'd like to thank Brian for the benefit of his time and expertise today. We welcome listener feedback by email at [email protected]. Thank you to all for joining us. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.