Pereida v. Barr

No. 19-438 - Argued October 14, 2020
At Issue

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?

  • Brian P. Goldman, for the Petitioner
  • Jonathan C. Bond, for the Respondent
Background and Case Commentary

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:

Key Questions from Oral Argument

Justice Kagan to Petitioner (16:51): Mr. Goldman, I understand that you think it doesn't matter whether the question here is legal or factual, that you win either way. On -- on the other hand, a lot of the questions that you've been getting would disappear if it were legal because even the government concedes, I believe, that questions of law are not affected by the burden of proof. So I'm just going to ask you whether you have an argument that this is a legal question?

Grace Brosofsky: Yes, Justice Kagan. First, it helps to demarcate the factual issue in this case, which is, “What do the conviction records say?” In Shepard v. U.S. and Taylor v. U.S., this Court made it clear that the factual record for ACCA purposes consists solely of a limited set of legal documents that we refer to as “conviction records,” and the same is true in the INA context. The Court does not need to know why the defendant pled guilty or even what alternative elements of the crime he satisfied; in fact, Shepard and Taylor prohibit any inquiry into the facts underlying the conviction (e.g., evidence about the defendant’s actual misconduct), even when such facts might be necessary to determining what version of the crime the defendant was convicted of. In Shepard itself, the factual determination revealed that the conviction records were ambiguous about what specific version of burglary the defendant committed—specifically about whether he satisfied the element of breaking into a building, or instead satisfied an alternative element of breaking into a ship, vessel, or vehicle. Rather than permitting a factual inquiry into police reports and complaint applications that could have clarified what type of structure the defendant had broken into, the Court found that it must simply accept that the conviction records were ambiguous. Although the Respondent would have this Court make a “factual determination” about what specific crime under Neb. Rev. Stat. § 28-608 Mr. Pereida pled guilty to, that inquiry looks beyond the conviction records and, therefore, is not part of the inquiry required (or even allowed) under Shepard and Taylor. Rather, after determining that a defendant’s conviction records are ambiguous, the next step is the legal determination of whether the records “necessarily establish” the elements of a crime listed in the INA.

In this case, we all agree on what the conviction records say: Mr. Pereida pled guilty to misdemeanor attempt of the crime of impersonation under Neb. Rev. Stat. § 28-608. We also agree on what the conviction records don’t say: that Mr. Pereida pled guilty to any specific version of the crime. Since the two sides agree on these facts, and neither side claims that the conviction records are fraudulent, there is no live factual dispute in this case.

Now that we know the facts, we move on to asking, “What is the legal significance of those facts?” That’s the question that this case is really about. To answer this legal question, this Court should assess whether Mr. Pereida’s conviction records “necessarily establish” the elements of an offense listed in the INA, just as it did in Mellouli. The first step is looking to Neb. Rev. Stat. § 28-608 and asking, “What are the least culpable acts that could result in a conviction for the crime of criminal impersonation under this statute?” The second step is assessing whether those hypothetical acts would satisfy the two elements of a CIMT: “a culpable mental state and reprehensible conduct.” The first step involves construing a state statute, and the second step involves construing the INA. The fact that both steps involve statutory interpretation—not weighing evidence, making credibility determinations, or doing any other type of fact-finding—makes it all the more evident that this is a legal inquiry, not a factual one.