Supreme Court says gap in conviction records hurts migrant

In a split decision issued today, the U.S. Supreme Court announced that gaps in conviction records created by state courts should be treated against migrants who are required to show that they haven’t been convicted of certain types of crimes. The decision, Pereida v. Wilkinson, No. 19-438 (March 4, 2021) (previewed here), split the Court along ideological lines, with Justice Gorsuch writing the majority opinion and Justice Breyer leading Justices Sotomayor and Kagan in dissent. Justice Barrett didn’t participate in this case, resulting in a five to three vote.

The majority and dissenters parted ways early on. To the majority, this case is about burdens of proof. Where the Immigration and Nationality Act, the federal law that governs immigration, requires a migrant to show that he is eligible for a form of relief from removal called cancellation of removal, how should courts treat gaps in the evidentiary record? To the dissenters, this was a case about how to figure out whether a person was convicted of one crime or another.

In 2010, Clemente Avelino Pereida, a Mexican citizen who has lived in the United States for a quarter century and has raised three children here, was convicted of Nebraska’s criminal impersonation offense. Since the federal government never allowed Mr. Pereida to come to the United States, there’s no question that he is removable. Despite that, some people in Mr. Pereida’s position can avoid removal by requesting cancellation of removal.  

The difficulty is that the Nebraska crime under which Mr. Pereida was prosecuted has four parts. Three of those parts would make Pereida ineligible for cancellation of removal; one part would leave him eligible. The documents submitted to the immigration judge by Mr. Pereida and the lawyer representing the Immigration and Customs Enforcement agency failed to identify which of these four sections Pereida was convicted of violating.

Gorsuch’s majority opinion framed this as a straightforward matter. Acknowledging that the Board of Immigration Appeals and U.S. Court of Appeals for the Eighth Circuit “observed that nothing in the record definitively indicated which statutory subsection Mr. Pereida stood convicted of violating,” Gorsuch nonetheless homed in on the question of burden. Since the INA places the burden on Mr. Pereida, it was his responsibility to clarify any doubt. When the dust settled, the lack of clarity that remained must be weighed against Mr. Pereida’s interest. “Mr. Pereida bore the burden of proving his eligibility for relief, so it was up to him to show that his crime of conviction did not involve moral turpitude,” Gorsuch explained.

The dissenting justices would have treated this case differently because, in their view, the key question here was what crime Mr. Pereida was convicted of violating. Did he get convicted of a crime that makes him ineligible for cancellation of removal or was he convicted of something that leaves cancellation on the table? Answering that threshold question, Justice Breyer wrote, demands “application of what we have called the ‘categorical approach’ to determine the nature of a crime that a noncitizen (or defendant) was previously convicted of committing.”

On its face, this appears like a narrow, technical dispute. It is certainly technical, but its implications reach far. The majority is correct that Congress demands that migrants carry the burden of showing that they are eligible for relief from removal. This is true of all forms of relief not just the cancellation of removal that Mr. Pereida wanted. It’s also true of all people who aren’t U.S. citizens, not just those who lack the government’s authorization to be here.

On the ground, though, the practical difficulty is that migrants don’t control court records. Indeed, no defendant does. Courts create records that contain certain information but leaves out other information. Complicating matters, there’s no uniformity across the country. States differ on what information is included. Indeed, so do counties and the clerks’ offices of individual courts within the same state. On top of that, what courts create and what they maintain are two different things. Here, too, practices vary dramatically. Once a court destroys a document, there’s usually no getting it back. None of this is in the hands of an individual defendant or defense attorney. If the defendant isn’t a U.S. citizen and ICE later tries to remove that person from the country based on a conviction, those court records became indispensable. What is contained in there can make or break a migrant’s chance of staying in the United States.

In other instances, the prosecutor and defense attorney involved in a criminal case don’t have any reason to ensure that certain information makes it into court records. Lots of times the outcome of a criminal case is going to be exactly the same no matter how general or specific the records are. Pressed for time, lawyers and judges typically don’t bother with issues that don’t affect the outcome. Indeed, Mr. Pereida’s criminal case appears not to have been affected one bit by the lack of specificity. He was convicted of one of the four sections of Nebraska’s criminal impersonation statute. To the prosecutor, that’s all that mattered. To the judge, that was enough to enter a judgment against Mr. Pereida and decide on a sentence. To the defense attorney, that ended Mr. Pereida’s criminal matter.

After today’s decision, though, defense attorneys need to prioritize clarity above all else—over a prosecutor’s interest in moving onto another case, a judge’s interest in judicial efficiency, and over the ire that will come with demanding that counterparts across the courtroom do work that has no bearing on the outcome of a criminal case. Because, for a defendant who is not or might not be a U.S. citizen, the outcome of the criminal case is only one part of the legal process.  

Beyond the central dispute between the majority and the dissent, I was struck by two aspects of Justice Gorsuch’s opinion. First, he described the immigration judge as “a hearing officer at the Department of Justice.” To me, a “hearing officer” is simply a Justice Department employee whose interests are firmly aligned with the federal government. This is a far cry from the independent arbiters that immigration judges should be if their decisions are going to be stamped with the legitimacy of neutral decision-making. Gorsuch’s description doesn’t affect the outcome of this case, but it does reveal a lot about his view of the role of independence in immigration court adjudications. And given that he wrote on behalf of four more of his colleagues, it reveals something about their view too.

Second, Gorsuch’s description of the categorical approach suggests that the Court’s years-long commitment to this analytical method is fraying. Over many decisions, the justices have regularly embraced the centrality of the categorical approach. This is true of liberals who are currently on the Court as it is of conservatives like Justice Scalia. But twice Gorsuch and his colleagues chip away at it. Once they seem to invite Congress to eliminate the categorical approach, noting in footnote 2 “Nothing requires Congress to employ the categorical approach.” Clearly Congress knows this so this line strikes me as a gratuitous reminder.

Second, in the majority opinion’s final paragraph before the conclusion, Gorsuch dismisses arguments made by Mr. Pereida that are grounded in the Sixth Amendment. “Sixth Amendment concerns are not present in the immigration context,” he writes. This seems to be a step back from cases in which the Court has applied the categorical approach identically whether it arises in the criminal sentencing context or the immigration context. Instead, by dismissing arguments grounded in Sixth Amendment concerns, the majority seems to be creating two versions of the categorical approach. One version, influenced by the Sixth Amendment, applies only in criminal sentencing cases. The other version, not influenced by the Sixth Amendment, applies in removal proceedings. If the Court fully embraces this suggestion in future cases, this will take an analytical method that is complicated but manageable and turn it into a convoluted mess.