By Patty Corrales, former Senior Attorney for ICE
I just got back from my son’s soccer game. It was very intense. These ten year old boys were playing hard as a team to score a goal understanding what they needed to do and what they couldn’t do within the confines of the rules of soccer. As a mom, I was totally into the game and I, like the other parents, was at the edge of my seat. Not only were the boys dripping with sweat from the heat of the afternoon but they were sweating with anticipation of winning the game and they just needed one goal.
It was the fourth quarter and my son, the sweeper on the team, got the ball. He was dribbling the ball. He was focused and in zone. He kept dribbling the ball and passed it to his friend who passed it back to my son. My son kept dribbling the ball and then got the ball centered to kick it into the goal. He kicked the ball and the ball got past the goalie. My son made the winning goal…we cheered and then we heard the referee’s whistle. The referee called my son “off sides” and so the goal didn’t count. The dads were pissed.
If you know anything about soccer, you know that “off sides” means the same in whatever soccer league you play in. Its meaning is historical and its application is intended to lead to fairness and predictability on the soccer field. But when a referee decides to interpret “off sides” differently and apply it in contrast to what the rules in soccer intended, then parents are going to call “foul.” It’s just not fair and not how “off sides” was intended to apply.
This might come as a surprise to many but as a former prosecutor for the State of Colorado and as a former Senior Attorney for ICE the last 17 years, I am shouting foul with the Fifth’s Circuit decision in Moncrieffe and the Government’s non categorical approach in that case. The Government decided to change the rules but didn’t give Mr. Moncrieffe the benefit of notifying him that the rules were going to change.
I am a believer in fairness. I am a believer in justice. If a prosecutor can prove that a defendant committed a crime beyond a reasonable doubt then obtaining a guilty verdict is fair and just. If the Department of Homeland Security can establish by clear and convincing evidence that an alien is removable for having been convicted of an aggravated felony then a finding of removability is fair and just. But, it is not fair or just when the burden of proof and who has that burden changes and it is not fair or just when the rules of the game change without proper notice. When that happens then it doesn’t matter what hat you are wearing, the need to call foul is important.
This week the Supreme Court is going to play referee in deciding the proper application of the “categorical approach.” The high court is going to play an important role in an intense debate on ensuring that the immigration consequences on criminal convictions are comprehensible, reasonable and predictable. The real question that I believe Moncrieffe v. Holder, and likewise Garcia v. Holder, No. 11-79, represents is whether it is the government’s burden to establish that an alien has been convicted of an aggravated felony or whether the burden of both proof and persuasion falls on an alien to proof that he or she has not been convicted of an aggravated felony, particularly when the record of conviction is silent on salient facts that would make a state conviction an aggravated felony for immigration purposes.
Essentially, when a defendant is convicted in state court of possession of marijuana with intent to distribute but the record of conviction does not disclose the quantity of marijuana or the existence of remuneration, is the defendant removable as an alien who has been convicted of an “aggravated felony” merely because of the possibility that the amount of marijuana was not a small amount and that there was remuneration involved? Who has to prove what and what approach is taken to determine whether the proper proof has been presented?
In Moncrieffe, the Fifth Circuit held that the petitioner bore the burden of proving that his conviction involved only a small amount of marijuana for no remuneration but that he had not offered any evidence on the matter in immigration court so the Court of Appeals sustained the finding of the Immigration Judge that Moncrieffe was removable as an aggravated felon.
This non-categorical approach urged by the Government places the burden of proof and persuasion on individuals like Moncrieffe, and the Board of Immigration Appeals (“Board”) is in agreement. Subsequent to filing the writ of certiorari in this case, the Board issued a precedential decision making clear that an alien has the opportunity in immigration court to show that section 21 U.S.C. § 841(b)(4)’s mitigating exception applies. See Matter of Castro-Rodriguez, 25 I&N Dec. 698, 702 (BIA 2012) (citing, inter alia, Nijhawan v. Holder, 557 U.S. 29 (2009)). So, it’s all left in the hands of the alien.
I find this interesting given that in this country when the Government charges you with a crime or attempts to remove you from this country, isn’t it their burden to proof to prove you committed the crime or that non-citizen alien should be removed from this country?
In the established terminology, the requirement of proof beyond a reasonable doubt in criminal cases was given constitutional status by the Supreme Court in 1970 in the case of In re Winship, 397 U.S. 358 (1970), which held that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is being charged. The purpose behind this rule is simply because the Government has more access to the evidence necessary to prove the crime than a defendant may have to prove his innocence.
In removal cases, the parties’ burden of proof depends on whether the alien is an “applicant for admission” or has been admitted to the United States. Regardless, of whether the removal proceeding involves an alien’s deportation or admissibility, the U.S. government, and specifically DHS, must first establish by “clear, unequivocal, and convincing evidence” that you, as the person in question, are in fact an alien. The “clear and convincing” burden requires a showing that it is substantially more likely than not, as shown by the facts and evidence, that the person is an alien and that the person is removable from the United States for the immigration violation charged.
This burden of proof is higher than that in ordinary civil cases, where the burden is by the “preponderance of the evidence,” but lower than that in criminal cases, where the burden is “beyond a reasonable doubt.” Nonetheless, the burden is on the Government. Why? Again, because the Government has more access to the evidence to establish the removability of an alien than the alien has access to proof that he or she is not removable from the United States.
Ultimately, Congress thought that the burden rests on the Government. This is no bold idea or approach. On the contrary, the non-categorical approach of the Fifth Circuit’s decision and that is advocated by the Government is bold and I hope the Supreme Court will call foul.