Courthouse Steps Oral Argument Teleforum: Pereida v. Barr

[Music]

 

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.

 

Greg Walsh:  Welcome to The Federalist Society's Teleforum conference call. This afternoon's topic is a special "Courthouse Steps Oral Argument Teleforum: Pereida v. Barr."  My name is Greg Walsh, and I am 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 M. Fish, a member of The Federalist Society's Executive Committee Practice Group on Criminal Law and Procedure. After our speaker gives his opening remarks, we will go to audience Q&A.

 

      Thank you for sharing with us today. Brian, the floor is yours.

 

Brian M. Fish:  Well, thank you very much, and greetings, once again, from crimmigration land. I like to call it crimmigration where it's the Venn diagram of where criminal law meets immigration law. Think of a Venn diagram created by the Mad Hatter:  It's insane, there's no way out, and it's all our own darn fault. That sort of sums up most criminal immigration cases, and today is no exception.

 

      Today, a few hours ago, on the courthouse steps—or, as I like to say, my dining room table—I heard the arguments in Pereida v. Barr, yet another immigration-related case about how criminal law applies to immigration law.

 

      Right off the bat, I'll give you the issue presented and then tell you what it really means. The issue is, in this particular case, does a state-level conviction bar an alien from applying for relief—just applying for relief—if the conviction is ambiguous as to whether it corresponds to an offense in the Immigration and Nationality Act?

 

      Now, that was a mouthful. Basically, what the question is if that guy is convicted of a crime and nobody can tell what crime he was convicted of, who wins? Does the bad guy win, the criminal alien, because if nobody can show what he was convicted of, does he skate by?

 

 Or, does the government, in this case through the Department of Homeland Security who brings the immigration charging case to the immigration court, does the department win because it's the alien's burden to show that he was not convicted of a certain kind of crime?

 

      So it's one of those how do you prove or disprove the negative? And, like so many cases that come before the Court, or any court for that matter, it's a fact case. In this particular case, the facts line up much stronger for the sympathetic criminal alien.

 

      Here's the skinny. We have Mr. Pereida, who is a Mexican national, who EWI'd—as we say in crimmigration land—EWI'd. He entered without inspection 25 years ago, and he has three kids, one of which is a United States citizen, and there's nothing on the record to indicate that he did anything else other than illegal entry and the criminal case that brought him to, years later, the Supreme Court today.

 

      What did he done do? What he done did was he was convicted in Nebraska of something called attempted criminal impersonation. He was fined 100 bucks and sent on his way by the Nebraska court.

 

The underlying facts of that case are that he used a fake Social Security number to get a job. Ladies and gentlemen, that's it. Those are the facts. We're not talking about a gang-banging rapist, murdering, etc., etc. We are simply talking about a guy that came in years and years and years and years and years and years ago to work and provide for his family; the quintessential sympathetic alien.

 

      But he got that conviction. So let's talk about what he did, or what he was convicted of, or what we think we might have been convicted of, which is the heart of this case: attempted criminal impersonation.

 

      For immigration purposes, the parties don't care whether you are convicted of an attempted something or a conspiracy to commit a something. So that's out of the way. We've got a criminal impersonation, and does that -- the heart of the question is does that offense constitute a crime involving moral turpitudedness, a CIMT?

 

      What is a CIMT? Well, that term was created by Congress years and years ago, and of course, they said absolutely nothing in the statute about what is a CIMT. Therefore, we have literally thousands upon thousands of both administrative law and district and circuit and Supreme Court decisions trying to explain what a CIMT is. What we've come up with is three things: it's a crime that involves fraud, theft, or deception that goes against the community standards of morality.

 

What we have in this particular case, and why this case came to the Supreme Court, is Nebraska has a criminal statute for criminal impersonation that has four subsections. Three of the four subsections are, without a doubt, a CIMT. The fourth subsection is not.

 

      The reason this case is here today is who has to show which subsection a person is convicted of? If nobody can show which subsection of a potential CIMT someone is convicted of, if no one can show that, does the case get to go forward, or does the immigration case end at that point with a removal order, in this case, back to Mexico?

 

      What occurred in the immigration proceedings was that at the time that Mr. Pereida was discovered by immigration officers, he was given what's called a notice to appear. That's the immigration charging document telling you to go to immigration court. The NTA, the notice to appear, is pretty much two sections. First section is the allegation section. The second is the immigration charge.

 

      Mr. Pereida was charged as a simple entry without inspection. In other words, he came in illegally. He wasn't caught at the border. The United States government has no idea when he came in and where he came in. The allegation part of the NTA was simply you're not a United States citizen or native. You are a citizen and a native of Mexico. You came in at an unknown time and at an unknown location, and finally, you were not inspected by an immigration officer.

 

      Those four allegations gave rise to one immigration charge, which is you entered into the United States without inspection. That's it.

 

      In immigration court, the first step of the court proceedings is called a master calendar hearing where the immigration judge reads off, in this case what I just explained to you, the allegations and the immigration charge. In 1,000 cases, 999 times the alien will say, "I admit the allegations and concede the charge."

 

      At that point, the government's job is done. They have established removability, and the alien has conceded that he is, in fact, removable. The alien will next say, "But, please, Your Honor, don't order me removed. I would like to file for…" and then fill in the blank. So, "I'd like to file for asylum, adjustment of status, temporary protected status, special immigrant juvenile status," or whatever else the alien thinks he or she might be eligible for. "I'd like to apply for that before Your Honor."

 

      At that step, it's now the alien's burden to prove that he or she is eligible for the relief sought. In this particular case, Mr. Pereida was asking for something called cancellation of removable for a non-permanent resident. In other words, Mr. Pereida doesn't have his green card—he's not a permanent resident, LPR—and he has to file a 42(b) application.

 

To show that he's eligible for relief, she has to show just a couple of things: he's been in the country ten years, there is an exceptional and extremely unusual hardship for a qualifying family member which is a United States citizen or lawful permanent resident, parent, spouse, or child, and he has to show—and this is the important one for today's hearing—good moral character and that he's not committed any CIMTs. There is that CIMT again.

 

      Back to Nebraska and his criminal impersonation. Is that a CIMT? And if it is, then the case is over. He doesn't get to file the application and get to the discretionary stage of the hearing before the immigration judge. He's done. And if he can't [inaudible 00:11:48] to the statutory question before the court today -- if neither party can show what he was convicted of, does the case get to proceed? Or, does that end it because if it's his burden—and that's the key. If it's the alien's burden to show he was not convicted of a CIMT, then if he can't do it, he can't do it. The case should be over.

 

      Well, this case coming out of Nebraska rose out of the Eighth Circuit. The Eighth Circuit says, "It's your burden, Mr. Pereida. You didn't meet it. You lose." The Eighth agrees with the Fourth, Sixth, and the Tenth. To the surprise of absolutely no one, on the other side is the Ninth Circuit and the First, Second, and Third Circuits. So we have the classic circuit split 4-4 and leading to today's hearing.

 

      Before we get too much farther, we need to give you a little bit of the history of this particular case and what occurred at each stage. Like I said, the case starts at the immigration court. The immigration court system is part of the Department of Justice. When, after 9/11, the Department of Homeland Security was formed and the former INS, Immigration Naturalization Service, was broken up into ICE, USCIS, customs and border patrol has a piece of immigration law enforcement, that all went to Department of Homeland Security.

 

But the immigration court system stayed with DOJ, so the immigration judges are DOJ employees, and this particular immigration judge said that using—getting a little bit into the weeds. I promise I won't take too long—using the modified categorical approach, he determined that three of the four subsections of the Nebraska law were, in fact, CIMTs, as I said. And, using the modified approach, this IJ determined that the respondent, as we call them in immigration court, the alien, was not convicted of the subsection that is not a CIMT.

 

Therefore, this alien was convicted of a CIMT and ineligible to even apply for cancellation. Meaning, that was the end of the immigration case. The immigration judge ordered removal based on that ground. Didn't hear anything else. Case over.

 

      Of course, Mr. Pereida appealed to the Board of Immigration Appeals, also DOJ employees. Under the entirety of the immigration system is called the Executive Office for Immigration Review, EOIR, which there is a lot of donkey in that. But anyway, moving along.

 

      The Board disagreed with the immigration judge; said that even using the modified categorical approach to applying whether a state conviction fits the definition of a federal criminal defense. Even using the modified approach we can't tell what this guy was convicted of, but—agreeing with the immigration judge—because, Mr. Pereida, you didn't show us you weren't convicted of a CIMT and it's your burden to do so, you lose. You're not eligible to even apply for cancellation because you didn't show us that you were not convicted of a CIMT.

 

      That was the final agency decision, the agency being the Department of Justice. That case was a petition for review. A PFR was filed by Mr. Pereida to the Eighth Circuit. The Eighth Circuit denied the PFR. If you're unfamiliar with the PFR terminology, it's not a direct appeal. It's, as I said, a petition for review. Pereida is sort of throwing the Hail Mary, if you will. "Look, Eighth Circuit. The DOJ really missed it completely on this one, and we are asking for a full hearing," or, what they're really asking for is for the circuit court to remand it back to the BIA for re-adjudication.

 

      That Hail Mary pass fell incomplete. That is the circumstance we got the petition for writ of certiorari to get us to the Supreme Court. That obviously was accepted and got us to today's hearing.

 

      The most important line from the Eighth Circuit decision was at the end. Their analysis went as follows. "Look, Mr. Pereida. It's not your fault that you can't get conviction records which clear this mess up. So what? It's your burden to show, under the statute, that you were not convicted of a CIMT." That's the most frustrating part of this entire case.

 

And it reminds me—which brings back more frustration—reminds me of law school. I've been out of law school more than a few laps around the sun, but I can remember my constitutional law case book. I've always wondered why day after day, class after class, month after month, two semesters of this stuff, nobody actually ever talked about the Constitution. I think it was somewhere under Tab J of the appendix. I wonder if today if it's even under the appendix at all; if anybody even talks about it. But I digress.

 

The reason I was thinking about law school and that problem is this case is, at its heart, incredibly simple. The statute itself, the Immigration and Nationality Act, clear as day, black and white, says it's the respondent alien's burden to show eligibility for relief, both eligibility under the statutory issues involved and as a matter of discretion.

 

If we don't get past the statutory issues, then the case is over, which was the Eighth Circuit point. But, lawyers being lawyers, we have years and years of litigation and just in this particular issue:  Whose burden is it?

 

Importantly, and why this case matters to folks who might not have anything to do with immigration law, per se, but are criminal court practitioners. Whether you're a prosecutor or a defense attorney, these kinds of things are important because if you're the defense attorney, you need to properly advise your client of immigration consequences to any guilty plea or any verdict by a court or a jury. You need to properly advise them.

 

What you should be doing is that anybody who you were not present at the birth of, the first question you should be asking them is where were you born? Are you a citizen should be the next question because you need to start thinking about consequences other than just what he might get convicted of and how much time is he going to do.

 

If you're the criminal court prosecutor, you need to make sure, as is always the case, make sure everybody else is doing their job not just your job. You need to make sure the court is doing their job, the defense attorney is doing their job and properly advising their client, and you need to make sure the clerk of court has properly entered the conviction into the record.

 

So that's a longwinded way of saying if there's four subsections, make darn sure you put into and have the clerk put into the record of conviction which subsection this person was convicted of.

 

You're thinking, "Oh, Brian, I don't care about immigration consequences. I'm just a good ole country prosecutor. We don't care. Doesn't bother us." Here's another reason why it might bother you, and you guys need to be thinking about this and making sure that the record is fully complete. Because as the term "categorical approach" or "modified categorical approach" are ways that courts look at convictions and try to ascertain whether that conviction falls into a list of federal convictions.

 

If a federal sentencing court is looking at your conviction from ten years ago and can't ascertain whether that conviction was, say, a first degree burglary charge or was it a third burglary conviction, and if it can't figure that out, then your conviction, which should make the guy now, ten years later in federal district court, sentenced to 100 months as opposed to 30 months because of your predicate previous conviction, that's important.

 

So we need to be sure, and we need to have a complete record so that, whether it's a month from now, a year from now, or ten years from now, when your criminal conviction comes up in a sentencing context and the federal district court judge, the defense attorney, and the prosecutor are all arguing about the sentencing commissions, the guidelines, Taylor v. United States, we don't have this ambiguity.

 

Regardless of everybody's personal feelings on immigration law, certainly in the criminal context of the modified categorical approach, or the categorical approach, that courts use when trying to apply state convictions towards federal sentencing guideline, that makes it important. The same analogy, except for the most important part, which is whose burden is it to show?

 

That came up a lot today in the Q&A between counsel and the various justices. Let's talk about, for a few minutes, what the justices might be thinking of.

 

Counsel for Mr. Pereida spoke, I thought, in his brief introduction on the wrong thing. As I stated a few minutes ago, this should be a black and white, easy slam dunk case if you just read the statute. If the law isn't on your side, argue the facts. And that's what this guy was basically trying to do. He was trying to argue the facts of Mr. Pereida didn't do much of anything. He didn't do anything wrong. He was just trying to work and he wasn't an unsympathetic person. That's one.

 

Number two, what, legally speaking, Pereida's counsel was trying to say is if there's alternate ways to get convicted under a state statute and it's unclear as to which one you were, in fact, convicted of, it's not the alien's burden in immigration court to show that. It's the government's burden. That's simply just wrong.

 

More to the point, what Pereida's counsel was arguing was look, even if you don't buy this argument, the attorney general, through the immigration court system, still has discretion. If the attorney general wanted to deny this case, he, through the immigration court system, would be stuck listening to it and then could deny it anyway. So at least let Mr. Pereida have his shot.

 

The questions started from the Chief Justice to Pereida's attorney, and he made probably the most cogent point of the day, which is simply under the INA, the Immigration and Nationality Act, the burden seems to be clearly on the respondent alien to show certain things, including that he was not convicted of a certain crime. That differs from the Court's use of the categorical approach towards determining if a statute fits a CIMT under the, say, the Armed Career Criminal Act where it's the government's burden.

 

If we have a burden under the INA, which is on the respondent to show the negative, and under the criminal statute for the government to affirmatively show what he was convicted of, why isn't this an easy case?

 

Well, Pereida's counsel went back and forth talking about the least elements test, the necessarily convicted of something language used in dicta in a couple of Supreme Court decisions, but never really answered the question directly.

 

Justice Thomas picked up on that exact same theme and was, again, trying to make the obvious distinction between the Armed Career Criminal Act and the Immigration and Nationality Act and is pointing out, yet again, that the burden shifting in immigration law is on the respondent, once the Department of Homeland Security proves removability, whereas in the criminal law it's always on the government to show certain things.

 

Back and forth it goes. We then turned to Justice Breyer who, oddly enough, had no questions. I'll pick up on something Justice Alito was asking about. If someone is convicted of a crime and Congress says the burden is on the alien to show that that crime is not a CIMT, is that a constitutional thing? The answer is yes. Congress could do that and, in fact, did do that, from my standpoint.

 

Mr. Pereida's standpoint, through counsel, what they were arguing, is look, the REAL ID Act, which modified the Immigration and Nationality Act, didn't do that. He didn't exactly say how the REAL ID Act didn't do that because I've got it right in front of me, and I'm reading it as he's speaking, and it clearly says, "Under all circumstances where the alien is applying for relief, it is his burden to show that he has met the elements for relief and is eligible as a matter of discretion for the relief."

 

Furthermore, the code that encompasses the Immigration and Nationality Act under 8 CFR 1240 et. al. The code says the exact same thing; that it's the burden of the respondent to show that he has met his burden for eligibility to even apply for it. So the statute says it, the code says it, case law says it, but we're here today arguing, yet again, whose burden it is to show whether a conviction meets the threshold.

 

But even more so than if the conviction meets a threshold of showing that, in this case, it's a crime involving moral turpitude but whose burden is it to prove? We go back and forth, back and forth, and we're not getting any answer by Pereida's counsel for that most basic question because he wants to talk about case law not about the statute and what the statute says.

 

My chuckle-out-loud moment was actually provided by Justice Sotomayor who, right off the bat, when she started asking questions, said, "Look, is there any other reason why you should win? Because I'm not sure if I can go with you." As I'm doing now, chuckling. It was like, wow. And then she asked, "Is there any reason I can vote to vacate and send the case back?"

 

Pereida's counsel dejectedly said, "No, Your Honor. We tried a petty offense exception, but that was rejected. Pretty much this is all we got." Well, that is all they got.

 

Skipping forward a bit to the DOJ argument. Pretty standard stuff, as well it should have been because he simply argued what the statute actually says. Shocking that we should go with actually what the statute says because in this case, the REAL ID Act, which created the cancellation form of relief, was done by Congress because what was in existence prior to that, which was something called the suspension of deportation, was getting abused by the immigration court system. They were granting just about everybody suspension who was applying for it.

 

Congress had had enough, dispensed with suspension, created cancellation, made it much hard to get. It's probably the second highest most difficult thing to be able to show as a respondent, alien in immigration court. They specifically said in the congressional record that they were doing so because they wanted it to be difficult, not easy, to get.

 

Alito, yet again, asked the most pertinent question of the government counsel. When we're talking about the burdens of proof, and the shifting burdens of proof—it's sort of like the ping pong going back and forth across the table—what is the burden of proof that we're talking about? Is it a burden of proof of persuasion or a burden of proof or production of documents to show a certain thing?

 

Counsel responded, "Both," and he is absolutely correct. The respondent alien has the burden of proof to show both the documentary evidence to show, in his case, that he was not convicted of something, and he's got to persuade the immigration judge that he should have the cancellation granted as a matter of discretion. So you need both.

 

That was spot on questioning by Justice Alito and the right answer by government counsel. It's the alien's burden to show this.

 

The takeaway that I have from this case is you need to start with the statute itself. No one is arguing that the Immigration and Nationality Act, or as it's been modified by the REAL ID Act in 2005, is unconstitutional, at least not in this case.

 

If the act is constitutional, then Congress clearly showed that it wants the burden to be on the alien to show eligibility. If he can't show that he's eligible to even apply for something, even if it's no fault of his own, he still loses.

 

The last takeaway, the few talking points that I was thinking of as I was listening to arguments today, is—and we'll take it to current events. Judge Barrett is, literally as we speak, undertaking—what is today?—day three of Senate confirmation hearings. I give her all the credit in the world. She's sitting there with a blank pad that says "United States Senate" on it, and she's talking about her entire life and every case that she could possibly have thrown at her, and she's doing it off the top of her head.

 

I've got 30 pages of handwritten notes, a couple of hundred pages of documents printed out in front of me, and this woman is doing this much more difficult job simply from rote memory, which is impressive beyond belief. The other thing that we have to -- so I give her all the credit in the world and commend her to the Senate for quick approval.

 

The last talking point I want to have is, again, is -- to my friends on both sides of the table in trial courts throughout the country: please start getting things right and thorough and complete. Whether you're a defense attorney or a prosecutor, it behooves you, for your client or for the people, if you will, that these kinds of things are done properly, thoroughly.

 

I understand, believe me, completely that hundreds of cases a day are going through our big city, state-level courts, but too often things kinds of things are simply missed when it's an easy fix. Just make sure, when the case is done, you're looking at the printout that it says bad guy was convicted of 1-101(a) or (b) or (1) or (2).

 

Just take that extra half a second to make sure that the record is complete. Whether it goes up on appeal for your case, whether it goes to an immigration court case, or whether, ten years from now, it's the predicate offense for an ACCA hearing in federal district court, these kinds of things are important.

 

Thanks, everybody, and if there's any questions on Pereida, I'll be happy to talk about it.

 

Greg Walsh:  Brian, will the facts in this particular case reappear or would you say this is a unique situation?

 

Brian M. Fish:  No, this kind of thing happens all the time. In Mr. Pereida's case, the then-INS found out about him because of the beginning of the criminal case. In other words, the criminal case was occurring at the same time the immigration case was going on. In fact, in the immigration court case, his attorney asked that it be postponed until the criminal case ended. That happens all the time.

 

      I don't think that—I think it was Justice Kavanaugh's point. Well, maybe this doesn't happen with too much regularity—was correct. This occurs in immigration court all the time that they're parallel proceedings and, generally, everybody wants to know what happened in the criminal court case first, both the government and the alien respondent.

 

      The government because, well, if the guy gets convicted of a CIMT or an aggravated felony, that makes it a heck of a lot harder for him to win in immigration court. The respondent wants to drag things out a. because he's in the country longer and because there's a good chance that if he's not convicted, or if he can get it pled down to something that is not a CIMT or aggravated felony, then he'll at least have the opportunity to apply for something.

 

      That's not what happened with Mr. Pereida. He pled to something based on the facts that should have been disqualifying. He pled to something where he was committing a deception, which should have been a CIMT if some clerk in the Nebraska court had simply put (a) down.

 

      So this does happen with some regularity. To further the point, this case in immigration court started in 2010. It's been going on for ten years what should've been, and was by the immigration judge application of the law, an open and shut case. But, as they say in crimmigration land, it's never over until the alien wins.

 

Greg Walsh:  Thank you. We don't have any callers waiting. Brian, do you have any other thoughts that might interest our members?

 

Brian M. Fish:  Let's see. Taking a quick look through. I think I've hit all the major points.

 

      Again, I think I probably should've hit a little bit more upon what exactly the categorical approach was. If I wasn't clear, this comes up in immigration proceedings when an immigration judge is trying to figure out if a state-level conviction is analogous to one of a listed federal court convictions.

 

      In other words, in this case, does attempted criminal impersonation essentially fit into a generic crime of, say, identity theft, or something along those lines? And if it does, then, in this particular case, he is disbarred from filing for an application of relief.

 

      That's the fundamental issue that's confronted by immigration judges all the time. What did this person get convicted of, and is that state court conviction—almost always a state court conviction—applicable to immigration law?

 

      It is a frequent problem in immigration court when judges are trying to figure out exactly what someone was convicted of because of poor clerical proceedings by the state-level court. Or, even if it's clear as to what subsection, little subsection (a), (b), (1), (2), (3), (i), what he was convicted of, does that correspond to something that was outlined in the INA? That happens every single day in immigration court.

 

Greg Walsh:  Perfect. Well, we don't have any callers in the queue, so I'd like to say, on behalf of The Federalist Society, thank you to our speaker for the benefit of his valuable time and expertise today.

 

We welcome listener feedback by email at [email protected]. Thank you all for joining us. We are adjourned.

 

[Music]

 

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.