Pereida v. Barr
Does a criminal conviction bar a noncitizen from applying for relief from removal when the record of conviction is ambiguous as to whether it corresponds to an offense listed in the Immigration and Nationality Act?Advocates
- Brian P. Goldman, for the Petitioner
- Jonathan C. Bond, for the Respondent
Under the Immigration and Nationality Act (INA), a nonpermanent resident alien is eligible for cancellation of removal if he proves, inter alia, that he has not been convicted of any federal offense listed in the INA (e.g., a crime involving moral turpitude (CIMT)) or corresponding state crime. To determine whether a state crime corresponds to a listed federal offense, courts apply the “categorical approach,” assessing whether the least culpable acts that would have satisfied the elements of the state crime of conviction would also satisfy the elements of a listed offense.
In this case, the Petitioner, Mr. Pereida, sought cancellation of removal under the INA. While his immigration proceedings were ongoing, Mr. Pereida pled no contest to misdemeanor attempt of the state crime of criminal impersonation, as defined under the 2018 version of Neb. Rev. Stat. § 28-608. A no-contest plea is, for our purposes, equivalent to a guilty plea, and it results in a criminal conviction. The critical question is, accordingly, whether Mr. Pereida was convicted of a crime corresponding to a CIMT, making him ineligible for cancellation of removal. This inquiry is complicated by the fact that Neb. Rev. Stat. § 28-608 includes four different subsections, each of which outlines an alternative set of elements that independently define the crime of criminal impersonation. Some alternatives involve greater culpability and seriousness than others. Mr. Pereida’s conviction records do not specify which subsection formed the basis for his no-contest plea; consequently, it is impossible to determine to which set of elements Mr. Pereida pled guilty.
The Petitioner argued that the relevant question is whether Mr. Pereida’s conviction records “necessarily establish” the elements of a CIMT, meaning that the Court should resolve any ambiguity in Mr. Pereida’s favor. According to the Petitioner, when it is unclear what version of a crime an alien was convicted of, the court should employ the categorical approach and evaluate whether the least culpable version of the crime amounts to a CIMT.
The Respondent countered that each subsection of Neb. Rev. Stat. § 28-608 effectively describes a different crime, and that before applying the categorical approach, the court must answer an antecedent factual question about which crime Mr. Pereida pled guilty to attempting. Because Mr. Pereida has the burden of proof on questions of fact, the Respondent argued that any ambiguity about what specific crime Mr. Pereida committed should be resolved against him. In other words, the court should assume that Mr. Pereida was convicted of the most culpable crime included in the statute and then employ the categorical approach to assess whether that crime is a CIMT.
Justice Kagan, recognizing that the Respondent’s “burden of proof” argument hinges on the assumption that the question at issue is a question of fact, asked the Petitioner if he had an argument that it was actually a question of law. My answer points out that both parties actually agree on any facts that are relevant under the INA (i.e., what the conviction record says), and that the question at issue simply concerns the legal significance of those facts, so it is a question of law. My answer also discusses how resolving that question involves using tools of legal interpretation, not weighing evidence, making credibility determinations, or doing any other type of fact-finding.Pereida v. Barr on Oyez: https://www.oyez.org/cases/2020/19-438