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No. 13-74324 No. 13-74324 THE IIN NT HE
United &Mai States Court of Appeals for the the Rintb Ninth Circuit Enitert Court of appeafti for Circuit JULIO C ESAR VILLAVICENCIO, VILLAVICENCIO, JULIO CESAR Petitioner, Petitioner, v. V. LORETTA E. YNCH, LORETTA E. L LYNCH, Respondent. Respondent. On for Review of an an Order On Petition Petition for Review of Order of of the the Board of Immigration Appeals Board of Immigration Appeals UNOPPOSED MOTION FOR FOR LEAVE LEAVE TO FILE BRIEF BRIEF OF UNOPPOSED MOTION TO FILE OF AMICI CURIAE IN IN SUPPORT PETITIONER AMICI CURIAE SUPPORT OF OF PETITIONER Srikantiah Jayashri Srikantiah Jayashri Lisa Lisa Weissman-Ward Weissman-Ward IIMMIGRANTS' MMIGRANTS’ RIGHTS RIGHTS C LINIC, CLINIC, MILLS LEGAL CLINIC MILLS L EGAL C LINIC STANFORD S TANFORD L AW S CHOOL LAW SCHOOL 559 Abbott Way 559 Nathan Nathan Abbott Way Stanford, Stanford, CA CA 94305 94305
Robert M. M. Loeb Robert Loeb Thomas M. M. Bondy Thomas Bondy & O RRICK, H ERRINGTON & ORRICK, HERRINGTON SUTCLIFFE S UTCLIFFE LLP LLP 1152 1152 15th 15th Street Street NW NW Washington, DC Washington, DC 20005 20005 (202) 339-8400 (202) 339-8400
Manuel Vargas Manuel Vargas Andrew Wachtenheim Andrew Wachtenheim DEFENSE PROJECT IIMMIGRANT MMIGRANT D EFENSE P ROJECT St., Fifth Fifth Floor Floor 40 40 W. W. 39th 39th St., New York, NY 10018 New York, NY 10018
Aaron W. Scherzer Aaron W. Scherzer O RRICK, H ERRINGTON & & ORRICK, HERRINGTON SUTCLIFFE S UTCLIFFE LLP LLP 51 51 W. W. 52nd 52nd Street Street New York, NY 10019 New York, NY 10019 Brian P. P. Goldman Brian Goldman O RRICK, H ERRINGTON & & ORRICK, HERRINGTON S UTCLIFFE LLP LLP SUTCLIFFE 405 405 Howard Howard Street Street San San Francisco, Francisco, CA CA 94105 94105
Counsel Amici Counsel for for Amici
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CORPORATE STATEMENT DISCLOSURE STATEMENT CORPORATE DISCLOSURE Pursuant Rules of Appellate Procedure and Pursuant to to Federal Federal Rules of Appellate Procedure 26.1 26.1 and 29(c)(1), Amici Curiae American 29(c)(1), Amici Curiae Immigrant Immigrant Defense Defense Project; Project; American Immigration Association; Asian Asian Americans Americans Advancing Advancing JusticeImmigration Lawyers Lawyers Association; JusticeAsian Law in East Alto; Asian Community Legal Law Caucus; Caucus; Community Legal Services Services in East Palo Palo Alto; Detention Detention Watch Watch Network; Network; Florence Florence Immigrant Immigrant and and Refugee Refugee Rights Rights Project; Alliance’s National Justice Center; National Immigrant Immigrant Justice Center; Project; Heartland Heartland Alliance's Immigrant Immigrant Legal National Immigration Immigration Law Center; Legal Resource Resource Center; Center; National Law Center; National Immigration Immigration Project Project of National of the the National National Lawyers Lawyers Guild; Guild; Northwest Immigrant Immigrant Rights Rights Project; Northwest U.C. Davis Project; Public Public Counsel; Counsel; U.C. Davis Immigration Law Law Clinic; Immigration Clinic; and and Centro Centro Legal Legal de de la la Raza Raza state state that that no no
subsidiaries any corporation, corporation, and and no corporation owns subsidiaries or or any no publicly publicly held held corporation owns 10% 10% or of its its stock. stock. or more more of
&S SUTCLIFFE LLP O RRICK, H ERRINGTON & UTCLIFFE LLP ORRICK, HERRINGTON
/s/ Loeb /s/ Robert Robert M. M. Loeb Robert M. M. Loeb Robert Loeb Counsel Amici Counsel for for Amici
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UNOPPOSED MOTION MOTION FOR AMICI UNOPPOSED FOR LEAVE LEAVE TO TO FILE FILE BRIEF BRIEF OF OF AMICI CURIAE OF PETITIONER IN SUPPORT SUPPORT OF PETITIONER CURIAE IN Amici Immigrant Defense Defense Project; Project; American Amici curiae curiae the the Immigrant American Immigration Lawyers Lawyers Association; Immigration Association; Asian Asian Americans Americans Advancing Advancing JusticeJustice-
Asian Law in East Alto; Asian Community Legal Law Caucus; Caucus; Community Legal Services Services in East Palo Palo Alto; Detention Detention Watch Watch Network; Network; Florence Florence Immigrant Immigrant and and Refugee Refugee Rights Rights National Immigrant Immigrant Justice Center; Project; Alliance’s National Justice Center; Project; Heartland Heartland Alliance's Immigrant Legal National Immigration Immigration Law Center; Immigrant Legal Resource Resource Center; Center; National Law Center;
National National Immigration Immigration Project Project of of the the National National Lawyers Lawyers Guild; Guild; Northwest Immigrant Immigrant Rights Rights Project; Northwest U.C. Davis Project; Public Public Counsel; Counsel; U.C. Davis Clinic; and Immigration Immigration Law Law Clinic; and Centro Centro Legal Legal de de la la Raza, Raza, respectfully respectfully
request leave under of Appellate Appellate Procedure to file file request leave under Federal Federal Rule Rule of Procedure 29(b) 29(b) to the attached brief brief as as amici amici curiae curiae in in support Villavicencio’s the attached support of of Mr. Mr. Villavicencio's petition for review. petition for review. government has has informed informed Petitioner consents to Petitioner consents to this this motion. motion. The The government
Amici that it will will not Amici that it not oppose oppose this this motion. motion. This case presents an important important and This case presents an and recurring recurring question question of of immigration law regarding regarding the the interaction interaction between immigration law between the the Immigration Immigration
and Act’s burden of proof and Nationality Nationality Act's burden of proof provision provision and and the the operation operation of of the the
1 1
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modified categorical approach. approach. Amici Amici have and a modified categorical have deep deep expertise expertise and a significant interest significant interest in in this this question. question. Amici Amici have briefs on burden-of-proof question have submitted submitted briefs on the the burden-of-proof question
presented in this this Court presented here here in Court and and several several others. others. In In Sauceda Sauceda v. v. Lynch, Lynch, 819 F.3d 2016), the the First specifically 819 F.3d 526 526 (1st (1st Cir. Cir. 2016), First Circuit Circuit specifically Id. at at 529. 529. In In “acknowledge[d] the curiae filed." filed.” Id. "acknowledge[d] the helpful helpful briefs briefs amici amici curiae
support this motion, amici state follows: support of of this motion, amici state as as follows: 1. The The attached amicus brief brief explains that Young 1. attached amicus explains that Young v. v. Holder, Holder, 697 697 F.3d 976 with F.3d banc), is is clearly clearly irreconcilable irreconcilable with 976 (9th (9th Cir. Cir. 2012) 2012) (en (en banc),
Moncrieffe 133 S. 1678 (2013), (2013), as to whether whether an an Moncrieffe v. v. Holder, Holder, 133 S. Ct. Ct. 1678 as to noncitizen like Petitioner from from ambiguous conviction bars a noncitizen like Petitioner ambiguous record record of of conviction bars a
relief from removal relief from removal under under the the modified modified categorical categorical approach. approach. Young Young held “an inconclusive inconclusive record conviction does held that that "an record of of conviction does not not demonstrate demonstrate eligibility for cancellation of eligibility for cancellation of removal,” because noncitizens bear the removal," because noncitizens bear the
burden of of proving at 989. The Supreme burden proving their their eligibility. eligibility. 697 697 F.3d F.3d at 989. The Supreme Court’s later decision in Moncrieffe clarifies, however, Court's later decision in Moncrieffe clarifies, however, that that the the analysis analysis of a conviction conviction is is a inquiry that “the same in both both of a a purely purely legal legal inquiry that operates operates "the same in [the and cancellation] cancellation] contexts.” 133 S. 1685 n.4. [the removal removal and contexts." 133 S. Ct. Ct. at at 1685 n.4. Accordingly, a ambiguous record conviction does Accordingly, a merely merely ambiguous record of of conviction does not not render render a a 2 2
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conviction disqualifying which party bears an evidentiary conviction disqualifying regardless regardless of of which party bears an evidentiary burden of of proof. when burden proof. Evidentiary Evidentiary burdens burdens of of proof proof have have no no role role to to play play when courts are are considering considering questions courts questions of of law law like like the the one one here. here. Moreover, as Amici’s brief brief demonstrates, would Moreover, as Amici's demonstrates, reaffirming reaffirming Young Young would create a circuit split. Amici’s brief brief contends this create a post-Moncrieffe post-Moncrieffe circuit split. Amici's contends that that this Court instead follow follow the the First lead in concluding that Court should should instead First Circuit’s Circuit's lead in concluding that Moncrieffe’s least-criminalized-acts presumption “dictates the Moncrieffe's least-criminalized-acts presumption "dictates the outcome” outcome" of case where where the is ambiguous. 819 F.3d at 531. of the the case the record record is ambiguous. Sauceda, Sauceda, 819 F.3d at 531. 2. This Court’s an ambiguous 2. This Court's decision decision whether whether an ambiguous conviction conviction should should bar essential immigration bar noncitizens noncitizens from from essential immigration relief relief will will have have broad broad implications for noncitizens noncitizens in this Circuit. implications for in this Circuit. It It will will have have an an enormous enormous
impact in in the contexts where where prior convictions may prior convictions may limit limit impact the many many contexts noncitizens' eligibility eligibility for for humanitarian humanitarian relief relief from removal, like like noncitizens’ from removal,
asylum cancellation, as well as asylum and and cancellation, as well as lawful lawful permanent permanent resident resident status status or or naturalization. e.g., 8 8 U.S.C. § 1229b(a) 1229b(a) (cancellation naturalization. See, See, e.g., U.S.C. § (cancellation of of removal removal for permanent U.S.C. § § 1229b(b)(1) 1229b(b)(1) (cancellation for permanent residents); (cancellation of of residents); 8 8 U.S.C. removal for for non-permanent non-permanent residents); removal U.S.C. § § 1229b(b)(2) 1229b(b)(2) residents); 8 8 U.S.C.
(cancellation for non-permanent who have been (cancellation of of removal removal for non-permanent residents residents who have been battered); 8 8 U.S.C. § 1158(b)(2)(B)(i) 1158(b)(2)(B)(i) (aggravated bar to asylum); battered); U.S.C. § (aggravated felony felony bar to asylum); 3 3
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8 U.S.C. § 1255(a) 1255(a) (adjustment for relatives 8 U.S.C. § (adjustment of of status status for relatives of of permanent permanent (h)(2)(B) residents citizens); 8 8 U.S.C. U.S.C. §§ §§ 1255(1)(1)(B), 1255(l)(1)(B), (h)(2)(B) residents and and U.S. U.S. citizens);
(adjustment victims and and juveniles (adjustment of of status status for for trafficking trafficking victims juveniles granted granted special immigrant juvenile 8 U.S.C. U.S.C. § § 1427(a)(3) 1427(a)(3) special immigrant juvenile status); status); 8 (naturalization). (naturalization). Given Given the the potentially potentially broad broad reach reach of of the the Court’s Court's of the the expert expert Amici's decision Amici’s decision here, here, good good cause cause exists exists to to permit permit the the filing filing of brief. brief.
3. Amici include include national with deep in the 3. Amici national organizations organizations with deep expertise expertise in the interrelationship of criminal criminal and and immigration interrelationship of immigration law law and and nonprofits nonprofits that that represent noncitizens noncitizens facing removal in in immigration immigration courts courts within within this this represent facing removal
Circuit. issued its in Moncrieffe Circuit. Since Since the the Supreme Supreme Court Court issued its decision decision in Moncrieffe v. v. Holder, 133 S. 1678 (2013), (2013), Amici Amici have before this Holder, 133 S. Ct. Ct. 1678 have appeared appeared before this Court Court in five five cases cases to to address address why why Young (9th Cir. in Young v. v. Holder, Holder, 697 697 F.3d F.3d 976 976 (9th Cir. 2012) (en (en banc), 2012) banc), is is irreconcilable with Moncrieffe. Amici appeared appeared irreconcilable with Moncrieffe. Amici
before this this Court both the banc stages stages of Almanzabefore Court at at both the panel panel and and en en banc of AlmanzaArenas v. 815 F.3d banc). Amici Amici also 2015) (en (en banc). also Arenas v. Lynch, Lynch, 815 F.3d 469 469 (9th (9th Cir. Cir. 2015) appeared before this this court court in in Lopez-Villa 11-73518 appeared before Lopez-Villa v. v. Lynch, Lynch, No. No. 11-73518 (argued and submitted 14(argued and submitted on on Oct. Oct. 7, 7, 2016); 2016); Marinelarena Marinelarena v. v. Lynch, Lynch, No. No. 1472003 withdrawn and and case case deferred issuance of 72003 (submission (submission withdrawn deferred pending pending issuance of 4 4
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the in United 14-50014, on the mandate mandate in United States States v. v. Martinez-Lopez, Martinez-Lopez, No. No. 14-50014, on Sept. Sept. 26, 2016); 2016); Antonio 26, Antonio v. 13-71256 (respondent’s brief due v. Lynch, Lynch, No. No. 13-71256 (respondent's brief due on on
Nov. (supplemental Nov. 29, 29, 2016); 2016); and and Vasquez Vasquez v. v. Lynch, Lynch, No. No. 09-72489 09-72489 (supplemental briefing completed completed on briefing on Mar. Mar. 15, 15, 2016). 2016). Many of these organizations to file Many of these organizations have have also also been been granted granted leave leave to file amicus briefs in in several several cases cases in in the of Appeals Appeals concerning concerning amicus briefs the Courts Courts of whether an ambiguous record bars relief e.g., whether an ambiguous record bars relief from from removal. removal. See, See, e.g., Sauceda (1st Cir. 819 F.3d Sauceda v. v. Lynch, Lynch, 819 819 F.3d F.3d 526 526 (1st Cir. 2016); 2016); Le Le v. v. Lynch, Lynch, 819 F.3d 98 98 2016 WL WL (5th Att’y Gen., (5th Cir. Cir. 2016); 2016); Gelin Gelin v. v. Att'y Gen., __ F.3d F.3d __,, No. No. 15-12497, 15-12497, 2016
5219863 (11th Cir. 2016); Mondragon 5219863 (11th Cir. Sept. Sept. 22, 22, 2016); Mondragon v. v. Holder, Holder, 706 706 F.3d F.3d 535 535 (4th Cir. Cir. 2013). (4th in numerous 2013). In In addition, addition, IDP IDP has has participated participated in numerous
Supreme cases about about the immigration consequences consequences of prior Supreme Court Court cases the immigration of prior criminal criminal convictions and the application of categorical rule. convictions and the application of the the categorical rule. See, See,
e.g., Mathis 136 S. 2243 (2016); (2016); Mellouli e.g., Mathis v. v. United United States, States, 136 S. Ct. Ct. 2243 Mellouli v. v. Lynch, Lynch, 135 S. 1980 (2015); (2015); Carachuri-Rosendo U.S. 563 135 S. Ct. Ct. 1980 Carachuri-Rosendo v. v. Holder, Holder, 560 560 U.S. 563 (2010). (2010). 4. The Amici Amici are: 4. The are: •• Amicus Immigrant Defense Defense Project Project (“IDP”) ("IDP") is is a Amicus Immigrant a not-for-profit not-for-profit legal legal
resource and training center that resource and training center that provides provides criminal criminal defense defense 5 5
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attorneys, immigration attorneys, and immigrants immigrants with with expert expert legal legal attorneys, immigration attorneys, and the interplay advice, and training involving the interplay advice, publications, publications, and training on on issues issues involving between between criminal criminal and and immigration immigration law. is dedicated to law. IDP IDP is dedicated to
promoting fundamental fairness fairness for for immigrants immigrants accused accused of crimes, promoting fundamental of crimes, and interest in in ensuring correct and therefore therefore has has a a keen keen interest ensuring the the correct immigrants at at interpretation of of laws interpretation laws that that may may affect affect the the rights rights of of immigrants
risk based on criminal charges. charges. risk of of detention detention and and deportation deportation based on past past criminal •• Amicus Immigration Lawyers Lawyers Association Amicus American American Immigration Association ("AILA") (“AILA”) is is
a 14,000 lawyers lawyers and a national national organization organization comprised comprised of of more more than than 14,000 and law school who practice in the field of law school professors professors who practice and and teach teach in the field of immigration and nationality nationality law. immigration and law. AILA AILA seeks to advance seeks to advance the the administration of of law law pertaining pertaining to to immigration, nationality, and administration immigration, nationality, and
naturalization; in the laws; to naturalization; to to promote promote reforms reforms in the laws; to facilitate facilitate the the administration administration of of justice; justice; and and to to elevate elevate the the standard standard of of integrity, integrity, honor, and courtesy courtesy of in representative capacity in in honor, and of those those appearing appearing in representative capacity immigration, nationality AILA’s immigration, nationality and and naturalization naturalization matters. matters. AILA's members members practice practice regularly regularly before before the the Department Department of of Homeland Homeland Security and before before the Security and the Executive Executive Office Office for for Immigration Immigration Review, Review, as as well as before the Appeals, well as before the United United States States District District Courts, Courts, Courts Courts of of Appeals, 6 6
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and pro bono basis. In and Supreme Supreme Court, Court, often often on on a a pro bono basis. In this this capacity, capacity, many of of AILA's constituent lawyer-members many AILA’s constituent lawyer-members represent represent foreign foreign nationals who nationals will be be significantly by this case. who will significantly affected affected by this case. •• Amicus Amicus Asian Asian Americans Americans Advancing Advancing Justice-Asian Justice-Asian Law Law
Caucus Justice -- ALC"), ALC”), founded founded in Caucus (“Advancing ("Advancing Justice in 1972, 1972, is is the the nation’s nation's first legal and rights organization organization serving first legal and civil civil rights serving low-income low-income Asian Asian Pacific Islander Islander communities. Pacific communities. Advancing Advancing Justice Justice -- ALC ALC employs a employs a
broad strategy which integrates integrates the the provision legal services, services, broad strategy which provision of of legal educational community organizing organizing initiatives initiatives and and educational programs, programs, community advocacy. vast majority of Asians Asians and and Pacific in Pacific Islanders Islanders in advocacy. Since Since the the vast majority of America and refugees, refugees, immigration policy is a major America are are immigrants immigrants and immigration policy is a major of concern to Asian Pacific-Islander concern to Asian Pacific-Islander communities. communities. The The intersection intersection of
criminal justice and immigration immigration enforcement criminal justice and enforcement is is of of particular particular concern to Asian and and Pacific communities who who concern to Southeast Southeast Asian Pacific Islander Islander communities are by detention are disproportionately disproportionately impacted impacted by detention and and deportation deportation due due to to criminal convictions. criminal convictions. Through Through clinics clinics throughout throughout Northern Northern California and its visitation programs, Advancing Justice Justice -California and its detention detention visitation programs, Advancing ALC legal representation representation and and information ALC is for legal information is a a primary primary resource resource for for Pacific-Islander communities. communities. for Asian Asian Pacific-Islander
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Amicus Community Alto •• Amicus Community Legal Legal Services Services in in East East Palo Palo Alto ("CLSEPA") is provides legal (“CLSEPA”) is a a non-profit that provides legal non-profit organization organization that
assistance immigrants in and around Alto, assistance to to low-income low-income immigrants in and around East East Palo Palo Alto, California, where two-thirds the population is Latino California, where two-thirds of of the population is Latino or or Pacific Pacific Islander. The The immigration Islander. immigration team consultations to to and team provides provides consultations and
represents local residents in many aspects of law, represents local residents in many aspects of immigration immigration law, including in Immigration Immigration Court. including in Court. In In an an effort effort to to teach teach local local immigrants their rights rights and immigrants their and responsibilities, responsibilities, CLSEPA CLSEPA gives gives
presentations a number of venues in the including presentations at at a number of venues in the area, area, including community health agencies, immigrants’ rights community health and and social social service service agencies, immigrants' rights groups, churches, schools, women’s shelters, shelters, and community events. groups, churches, schools, women's and community events. For individual For individual clients, clients, CLSEPA pro bono and low low cost cost legal CLSEPA provides provides pro bono and legal
assistance applying for for affirmative immigration affirmative immigration assistance to to immigrants immigrants applying benefits and and to in removal benefits to those those in removal proceedings proceedings in in Immigration Immigration Court, Court, including long including long term term lawful lawful permanent permanent residents residents seeking seeking waivers waivers of of criminal convictions. criminal convictions. Amicus Detention Watch Network Network ("DWN") (“DWN”) is is a a coalition •• Amicus Detention Watch coalition of of approximately 200 approximately individuals concerned concerned about about 200 organizations organizations and and individuals
the impact of immigration detention communities the impact of immigration detention on on individuals individuals and and communities 8 8
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in the the United United States. in 1997, worked for for nearly in States. Founded Founded in 1997, DWN DWN has has worked nearly two to fight fight abuses abuses in in detention, a drastic two decades decades to detention, and and to to push push for for a drastic tool for immigration reduction in the the reliance as a a tool for immigration reduction in reliance on on detention detention as
enforcement. are lawyers, lawyers, activists, community enforcement. DWN DWN members members are activists, community organizers, advocates, social clergy, organizers, advocates, social workers, workers, doctors, doctors, artists, artists, clergy, affected families from students, immigrants, and and affected families from students, formerly formerly detained detained immigrants,
around the country. country. They They are in individual-case individual-case and and impact impact around the are engaged engaged in litigation, documenting violations, local local and litigation, documenting conditions conditions violations, and national national organizing and administrative legislative advocacy, advocacy, community community organizing and administrative and and legislative mobilizing, teaching, teaching, and mobilizing, care. Through and social social service service and and pastoral pastoral care. Through its policy and its policy and organizing work, DWN continues to organizing work, DWN continues to advocate advocate for for
immigrant justice and for for the immigrant justice and the end end of of arbitrary arbitrary detention. detention. Amicus Florence •• Amicus Florence Immigrant Immigrant and and Refugee Refugee Rights Rights Project Project (“Florence “Project”) is is one ("Florence Project” Orientation Project" or or "Project") one of of 25 25 Legal Legal Orientation Program of the of Immigration Review. The The Program sites Immigration Review. sites of the Executive Executive Office Office of Project free legal legal information, information, pro pro se and direct Project provides provides free se assistance, assistance, and direct representation in removal by representation in removal proceedings proceedings to to noncitizens noncitizens detained detained by Immigration and Enforcement (“ICE”) ("ICE") in U.S. in remote U.S. Immigration and Customs Customs Enforcement remote locations Florence and and Eloy, Eloy, Arizona. In 2014, 2014, their their eight eight attorney attorney locations in in Florence Arizona. In
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and pro se approximately and non-attorney non-attorney staff staff provided provided pro se assistance assistance to to approximately 1,900 adult adult men and women by ICE. More than 1,900 men and women detained detained by ICE. More than 4,000 4,000 detained detained individuals individuals facing facing deportation deportation attended attended a a Florence Florence Project Project presentation immigration law and procedure. presentation on on immigration law and procedure. In In any any given given year, year, the of long-term long-term lawful lawful permanent the Project Project sees sees hundreds hundreds of permanent residents residents who are are detained and facing facing removal because of convictions, who detained and removal because of criminal criminal convictions, of cancellation cancellation of of removal removal or or and who may seek relief in the form of and who may seek relief in the form
other waivers. They They encounter individuals whose whose other waivers. encounter hundreds hundreds more more individuals eligibility for other relief—e.g., relief—e.g., cancellation eligibility for other cancellation of of removal removal for for nonpermanent residents, nonpermanent cancellation of Violence residents, cancellation of removal removal under under the the Violence
Against Women Act, and adjustment of Against Women Act, and adjustment of status—comes status—comes to to depend depend on on whether a conviction is is categorically categorically a a disqualifying As a a whether a conviction disqualifying offense. offense. As result, they observe observe firsthand firsthand the often insurmountable insurmountable result, they the multitude multitude of of often barriers barriers immigrant immigrant detainees conviction detainees face face trying trying to to obtain obtain outside outside conviction
records the legal legal impact impact of of this inability to records and and the this inability to obtain obtain documents. documents. Amicus Heartland Alliance’s National National Immigrant •• Amicus Heartland Alliance's Immigrant Justice Justice Center (“NIJC”) is is a legal organization providing providing legal Center ("NIJC") a nonprofit nonprofit organization education and representation to more low-income education and representation to more than than 10,000 10,000 low-income immigrants immigrants annually. annually. NIJC and counsels asylum NIJC represents represents and counsels asylum
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seekers, immigrant adults, adults, children, children, and and families, families, seekers, refugees, refugees, detained detained immigrant removal and separation. Their and facing removal and family family separation. Their and other other noncitizens noncitizens facing human trafficking, trafficking, advocacy includes survivors violence, human advocacy includes survivors of of domestic domestic violence,
and violent crime. crime. NIJC before the frequently before the federal federal and other other violent NIJC appears appears frequently courts on important issues impacting the the rights rights of of immigrants immigrants in in the the courts on important issues impacting United United States. States. NIJC NIJC seeks seeks to to promote promote human human rights rights and and access access to to justice for justice for immigrants, asylum seekers immigrants, refugees, refugees, and and asylum seekers nationwide. nationwide. •• Amicus Immigrant Legal national Amicus Immigrant is a a national Legal Resource Resource Center Center (“ILRC”) ("ILRC") is
nonprofit center whose whose mission with and nonprofit resource resource center mission is is to to work work with and educate educate immigrants, community legal sector immigrants, community organizations, organizations, and and the the legal sector to to continue to build a a democratic continue to build democratic society society that that values values diversity diversity and and the the rights of rights of all all people. interest in in this case people. The The ILRC ILRC has has a a direct direct interest this case
because it it advocates advocates for for greater accused or because greater rights rights for for noncitizens noncitizens accused or convicted of crimes, and convicted of crimes, and each each year year provides provides assistance assistance to to hundreds hundreds of of attorneys in criminal criminal prosecutions prosecutions and and attorneys defending defending noncitizens noncitizens in removal throughout the removal proceedings Ninth Circuit Circuit and and nationally. nationally. proceedings throughout the Ninth •• Amicus Immigration Law Center (“NILC”) ("NILC") is Amicus National National Immigration a Law Center is a
nonprofit legal-advocacy organization whose mission is to nonprofit national national legal-advocacy organization whose mission is to protect and promote of low-income low-income protect and promote the the rights rights and and opportunities opportunities of 11 11
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immigrants and and their family members. immigrants their family members. Ensuring Ensuring that that immigrants immigrants are that their in the course of are treated treated fairly fairly and and that their rights rights are are respected respected in the course of government enforcement enforcement of law is a priority priority for for the the government of immigration immigration law is a
organization. interest in in the burden of organization. NILC NILC has the burden of has a a fundamental fundamental interest proof issue in in this case because because of impact on proof issue this case of its its significant significant impact on the the ability ability of low-income to obtain obtain immigration immigration relief. relief. of low-income immigrants immigrants to •• Amicus Immigration Project Amicus National National Immigration the National National Lawyers Project of of the Lawyers Guild Immigration Project”) Project") is is a nonprofit membership membership Guild ("National (“National Immigration a nonprofit
organization immigration attorneys, workers, jailhouse organization of of immigration attorneys, legal legal workers, jailhouse lawyers, grassroots advocates, and lawyers, grassroots advocates, and others others working working to to defend defend immigrants' immigrants’ rights rights and and to to secure secure a fair administration a fair administration of of the the immigration and nationality nationality laws. National Immigration Immigration Project immigration and laws. The The National Project
provides bar, litigates litigates on behalf provides technical technical assistance assistance to to the the bench bench and and bar, on behalf of curiae in courts, hosts continuing of noncitizens noncitizens as as amici amici curiae in the the federal federal courts, hosts continuing legal education on the the rights and is the is the legal education seminars seminars on rights of of noncitizens, noncitizens, and author well as author of of numerous numerous practice practice advisories advisories as as well as Immigration Immigration Law Law and and three by ThompsonWest. and Crimes Crimes and three other other treatises treatises published published by ThompsonWest. Through its membership network network and Through its membership its litigation, the National and its litigation, the National Immigration Project Project is Immigration is acutely by acutely aware aware of of the the problems problems faced faced by
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noncitizens who have have had criminal justice contacts and and seek noncitizens who had criminal justice contacts seek to to establish eligibility eligibility for relief from from removal establish for relief removal or or from from lawful lawful status. status. •• Amicus Amicus Northwest Northwest Immigrant is a a Immigrant Rights Rights Project Project (“NWIRP”) ("NWIRP") is nonprofit legal legal organization nonprofit organization dedicated dedicated to to the the defense defense and and
advancement advancement of of the the legal legal rights rights of of noncitizens noncitizens in in the the United United States States with respect As part with respect to to their their immigrant immigrant status. status. As part of of that that work, work, NWIRP NWIRP provides provides direct direct representation representation to to more more than than 3,200 3,200 low-income low-income immigrants removal proceedings proceedings every immigrants in in removal including a a every year, year, including
significant of individuals significant number number of individuals detained detained at at the the Northwest Northwest Detention in Tacoma, appears Center in Detention Center Tacoma, Washington. Washington. NWIRP NWIRP appears frequently for the the Ninth Ninth Circuit Circuit in frequently before before the the U.S. U.S. Court Appeals for in Court of of Appeals rights of of immigrants immigrants in in cases that and protect cases that seek seek to to advance advance and protect the the rights
the also provides the United United States. States. NWIRP NWIRP also provides direct direct representation, representation, workshops, and legal advice to low-income low-income immigrants immigrants seeking seeking workshops, and legal advice to immigration benefits, benefits, including including citizenship, citizenship, and and lawful lawful or immigration or protected protected status for survivors of domestic violence, human and human trafficking, trafficking, and status for survivors of domestic violence, other violent crime crime and other violent and persecution. persecution. •• Amicus Amicus Public is the bono law law firm firm Public Counsel Counsel is the nation’s nation's largest largest pro pro bono
based in in Los Los Angeles, Angeles, California. in 1970, based California. Founded Founded in 1970, Public Public Counsel’s Counsel's 13 13
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primary legal rights primary goals goals are are to: to: (1) (1) protect protect the the legal rights of of disadvantaged disadvantaged children; (2) represent represent immigrant children; (2) immigrant victims victims of of torture, torture, persecution, persecution,
domestic violence, trafficking, trafficking, and and other crimes; and and (3) foster domestic violence, other crimes; (3) foster economic by providing communities with with access economic justice justice by providing underserved underserved communities access to support of to quality quality legal legal representation. representation. In In support of these these goals, goals, Public Public from around the world world in Counsel indigent immigrants around the in Counsel represents represents indigent immigrants from States Citizenship Citizenship & & Immigration Immigration their before the their claims claims before the United United States
Services, Services, the the Executive Executive Office Office for for Immigration Immigration Review, Review, and and the the federal courts. courts. Over federal Over the the past past eight eight years, years, Public Public Counsel’s Counsel's Immigrants' Rights Immigrants’ Rights Project Project has has provided provided legal legal services services to to over over 2,500 2,500 immigrants detained by immigrants detained by the the Department Department of of Homeland Homeland Security, Security,
ranging legal orientations and pro ranging from from legal orientations and pro se se assistance assistance to to direct direct representation in removal and bond bond proceedings. representation in removal and proceedings. Amicus U.C. U.C. Davis is an •• Amicus Davis Immigration Immigration Law Law Clinic Clinic (“The ("The Clinic”) Clinic") is an academic institution dedicated academic institution dedicated to to the the defending defending the the rights rights of of detained in the detained noncitizens noncitizens in the United United States. States. The The Clinic Clinic provides provides direct direct representation immigrants who representation to to detained detained immigrants who are are placed placed in in removal removal proceedings. addition, the the Clinic screens unrepresented proceedings. In In addition, Clinic screens unrepresented individuals in in order bono attorneys individuals order to to facilitate facilitate placement placement with with pro pro bono attorneys 14 14
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and assistance to individuals in and provides provides pro pro se se assistance to detained detained individuals in removal removal proceedings who are are unable Thus, proceedings who unable to to obtain obtain direct direct representation. representation. Thus, the a direct interest in in the the issues issues presented case, as the Clinic Clinic has has a direct interest presented in in this this case, as the ability of immigrants to adequately mount in the ability of pro pro se se immigrants to adequately mount defenses defenses in immigration court court is is a a core aspect of immigration Clinic's work. The Clinic Clinic core aspect of The The Clinic’s work. The also interest in in seeing that the the immigration immigration statutes also has has an an interest seeing that statutes are are applied in a a constitutional, constitutional, consistent, consistent, predictable, applied in predictable, and and just just manner. manner. Amicus Centro de la (“Centro Legal”) was founded in •• Amicus Centro Legal Legal de la Raza Raza ("Centro Legal") was founded in 1969 to culturally and and linguistically legal aid 1969 to provide provide culturally linguistically appropriate appropriate legal aid services to low-income low-income residents and services to residents of of Oakland’s Oakland's Fruitvale Fruitvale District District and the Area. Centro the greater greater Bay Bay Area. Centro Legal’s Legal's Immigration Immigration Project Project provides provides legal representation and consultations consultations to and non-detained legal representation and to detained detained and non-detained immigrants, refugees immigrants, refugees and and asylum asylum seekers seekers throughout throughout Northern Northern California. currently represents immigrations in in removal 850 immigrations removal California. It It currently represents over over 850 proceedings. Annually, Centro Legal advises advises and/or proceedings. Annually, Centro Legal and/or represents represents hundreds of detained individuals before before the and hundreds of detained individuals the immigration immigration courts courts and Board of Immigration Appeals. Centro legal rights Board of Immigration Appeals. Centro Legal Legal provides provides legal rights presentations consultations three presentations and and consultations three times times a a month month to to individuals individuals in detention and in immigration immigration detention before the and represents represents clients clients before the detained detained
15 15
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immigration court court on weekly basis. basis. As As Centro immigration on a a weekly Centro Legal Legal provides provides legal legal education, consultations and a high education, consultations and direct direct service service representation representation to to a high removal volume of in removal volume of detained detained and and non-detained non-detained individuals individuals in
proceedings, it has interest in in the case. proceedings, it has a a substantial substantial interest the present present case. Amici respectfully views will be helpful Amici respectfully submit submit that that their their views will be helpful to to this this Court in this case as Court in this case as well. well. 5. Amici "endeavored “endeavored to 5. Pursuant Pursuant to to Ninth Ninth Circuit Circuit Rule Rule 29-3, 29-3, Amici to obtain consent of brief before before moving moving obtain the the consent of all all parties parties to to the the filing filing of of the the brief the to file file the brief.” Counsel for the the Court Court for for permission permission to the proposed proposed brief." Counsel for the Petitioner, Kari Kari E. E. Hong, Hong, has has informed counsel for for Amici that Petitioner Petitioner Petitioner, informed counsel Amici that motion. consents to to this this motion. consents
Amici also counsel for for the Amici also sought sought consent consent from from counsel the government, government, Dawn Dawn Conrad, and explained obtaining consent consent "relieve[s] “relieve[s] the of Conrad, and explained that that obtaining the Court Court of the to consider consider a a motion.” Adv. Comm. the need need to motion." Adv. Comm. Note Note to to Ninth Ninth Cir. Cir. R. R. 29-3. 29-3. The “[Y]ou will will need file a You can can The government government responded: responded: "[Y]ou need to to file a motion. motion. You state that you you asked asked for and we we took your state that for our our position, position, and took no no position position on on your request and will will not be filing an opposition opposition to the motion.” request and not be filing an to the motion." For the foregoing foregoing reasons, Amici respectfully leave to file For the reasons, Amici respectfully request request leave to file the attached brief. brief. the attached 16 16
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Dated: Dated: October October 31, 31, 2016 2016
Respectfully submitted, Respectfully submitted, s/ s/ Robert Robert M. M. Loeb Loeb Robert M. Loeb Loeb Robert M. HERRINGTON & O RRICK, H ERRINGTON & ORRICK, S SUTCLIFFE UTCLIFFE LLP LLP 1152 15th 1152 15th Street Street NW NW Washington, Washington, DC DC 20005 20005 Telephone: Telephone: (202) (202) 339-8400 339-8400 Facsimile: (202) Facsimile: (202) 339-8500 339-8500
[email protected] [email protected] Counsel Amici Counsel for for Amici
17 17
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CERTIFICATE OF SERVICE SERVICE CERTIFICATE OF II hereby certify that with the hereby certify that II electronically electronically filed filed the the foregoing foregoing with the Clerk the Court for the the United United States Appeals for for the Clerk of of the Court for States Court Court of of Appeals the Ninth Ninth Circuit the appellate Circuit by by using using the appellate CM/ECF CM/ECF system system on on October October 31, 31, 2016. 2016. II certify certify that in the case are that all all participants participants in CM/ECF the case are registered registered CM/ECF users and that will be be accomplished users and that service service will accomplished by by the the appellate appellate CM/ECF CM/ECF system. system. O RRICK, H ERRINGTON & UTCLIFFE LLP &S SUTCLIFFE LLP ORRICK, HERRINGTON Loeb /s/ /s/ Robert Robert M. M. Loeb Robert M. Loeb Robert M. Loeb Counsel Amici Counsel for for Amici
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No. 13-74324 No. 13-74324 THE IIN NT HE
United &Mai States Court of Appeals for the the Rintb Ninth Circuit Enitert Court of appeafti for Circuit JULIO C ESAR VILLAVICENCIO, VILLAVICENCIO, JULIO CESAR Petitioner, Petitioner, v. V. LORETTA E. YNCH, LORETTA E. L LYNCH, Respondent. Respondent. On for Review of an an Order On Petition Petition for Review of Order of of the the Board of Immigration Appeals Board of Immigration Appeals BRIEF OF OF AMICI CURIAE IMMIGRANT IMMIGRANT DEFENSE DEFENSE PROJECT; PROJECT; BRIEF AMICI CURIAE AMERICAN IMMIGRATION LAWYERS LAWYERS ASSOCIATION; AMERICAN IMMIGRATION ASSOCIATION; ASIAN ASIAN AMERICANS JUSTICE—ASIAN LAW AMERICANS ADVANCING ADVANCING JUSTICE–ASIAN LAW CAUCUS; CAUCUS; COMMUNITY SERVICES IN ALTO; COMMUNITY LEGAL LEGAL SERVICES IN EAST EAST PALO PALO ALTO; DETENTION WATCH NETWORK; NETWORK; FLORENCE DETENTION WATCH FLORENCE IMMIGRANT IMMIGRANT AND REFUGEE ALLIANCE’S AND REFUGEE RIGHTS RIGHTS PROJECT; PROJECT; HEARTLAND HEARTLAND ALLIANCE'S NATIONAL IMMIGRANT NATIONAL IMMIGRANT JUSTICE JUSTICE CENTER; CENTER; IMMIGRANT IMMIGRANT LEGAL RESOURCE RESOURCE CENTER; CENTER; NATIONAL NATIONAL IMMIGRATION IMMIGRATION LAW LAW LEGAL CENTER; NATIONAL IMMIGRATION PROJECT PROJECT OF CENTER; NATIONAL IMMIGRATION OF THE THE NATIONAL LAWYERS GUILD; NORTHWEST NORTHWEST IMMIGRANT NATIONAL LAWYERS GUILD; IMMIGRANT RIGHTS RIGHTS PROJECT; PROJECT; PUBLIC PUBLIC COUNSEL; COUNSEL; U.C. U.C. DAVIS DAVIS IMMIGRATION AND CENTRO IMMIGRATION LAW LAW CLINIC; CLINIC; AND CENTRO LEGAL LEGAL DE DE LA LA RAZA SUPPORT OF OF PETITIONER RAZA IN IN SUPPORT PETITIONER
Aaron W. W. Scherzer Scherzer Aaron O RRICK, H ERRINGTON & & ORRICK, HERRINGTON S UTCLIFFE LLP SUTCLIFFE LLP 51 51 W. W. 52nd 52nd Street Street New York, NY 10019 New York, NY 10019
Robert M. Loeb Loeb Robert M. Thomas M. Bondy Thomas M. Bondy O RRICK, H ERRINGTON & & ORRICK, HERRINGTON S UTCLIFFE LLP SUTCLIFFE LLP 1152 15th 1152 15th Street Street NW NW Washington, Washington, DC DC 20005 20005 (202) (202) 339-8400 339-8400 Counsel Amici Counsel for for Amici (Additional counsel counsel listed inside cover) cover) (Additional listed on on inside
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Jayashri Srikantiah Srikantiah Jayashri Lisa Lisa Weissman-Ward Weissman-Ward IIMMIGRANTS' MMIGRANTS’ RIGHTS RIGHTS C LINIC, CLINIC, MILLS LEGAL CLINIC MILLS L EGAL C LINIC STANFORD S TANFORD L AW S CHOOL LAW SCHOOL 559 Abbott Way 559 Nathan Nathan Abbott Way Stanford, Stanford, CA CA 94305 94305 Manuel Vargas Manuel Vargas Andrew Wachtenheim Andrew Wachtenheim DEFENSE PROJECT IIMMIGRANT MMIGRANT D EFENSE P ROJECT St., Fifth Fifth Floor Floor 40 40 W. W. 39th 39th St., New York, NY 10018 New York, NY 10018
Brian Brian P. P. Goldman Goldman O RRICK, H ERRINGTON & & ORRICK, HERRINGTON SUTCLIFFE LLP S UTCLIFFE LLP 405 405 Howard Howard Street Street San San Francisco, Francisco, CA CA 94105 94105
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CORPORATE STATEMENT DISCLOSURE STATEMENT CORPORATE DISCLOSURE Pursuant Rules of Appellate Procedure and Pursuant to to Federal Federal Rules of Appellate Procedure 26.1 26.1 and 29(c)(1), Amici Curiae American 29(c)(1), Amici Curiae Immigrant Immigrant Defense Defense Project; Project; American Immigration Association; Asian Asian Americans Americans Advancing Advancing JusticeImmigration Lawyers Lawyers Association; JusticeAsian Law in East Alto; Asian Community Legal Law Caucus; Caucus; Community Legal Services Services in East Palo Palo Alto; Detention Detention Watch Watch Network; Network; Florence Florence Immigrant Immigrant and and Refugee Refugee Rights Rights Project; Alliance’s National Justice Center; National Immigrant Immigrant Justice Center; Project; Heartland Heartland Alliance's Immigrant Immigrant Legal National Immigration Immigration Law Center; Legal Resource Resource Center; Center; National Law Center; National Immigration Immigration Project Project of National of the the National National Lawyers Lawyers Guild; Guild; Northwest Immigrant Immigrant Rights Rights Project; Northwest U.C. Davis Project; Public Public Counsel; Counsel; U.C. Davis Immigration Law Law Clinic; Immigration and Centro la Raza Clinic; and Centro Legal Legal de de la Raza state state that that no no
subsidiaries any corporation, corporation, and and no corporation owns subsidiaries or or any no publicly publicly held held corporation owns 10% 10% or of its its stock. stock. or more more of
&S SUTCLIFFE LLP O RRICK, H ERRINGTON & UTCLIFFE LLP ORRICK, HERRINGTON
/s/ Loeb /s/ Robert Robert M. M. Loeb Robert M. M. Loeb Robert Loeb Counsel Counsel for for Amici Amici
i i
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TABLE OF OF CONTENTS TABLE CONTENTS Page Page STATEMENT ........................................... ii CORPORATE CORPORATE DISCLOSURE DISCLOSURE STATEMENT TABLE OF AUTHORITIES TABLE OF AUTHORITIES .................................................................... iii iii INTEREST OF OF AMICI INTEREST AMICI ............................................................................. 1 1
SUMMARY ARGUMENT .................................................................. 2 OF ARGUMENT 2 SUMMARY OF ARGUMENT ............................................................................................ 7 ARGUMENT 7 A Record Record Of Ambiguous Does A Conviction That That Is Is Ambiguous Of Conviction Does Not Not Disqualify A Noncitizen From From Being Being Considered Disqualify A Noncitizen Considered For For Humanitarian Relief Relief From From Removal Humanitarian Removal .............................................. 77 A. A.
Under an ambiguous ambiguous record of Under Moncrieffe, Moncrieffe, an record of conviction does “necessarily” establish conviction does not not "necessarily" establish a a disqualifying conviction is is not disqualifying offense, offense, so so the the conviction not disqualifying least-acts-criminalized disqualifying under under the the least-acts-criminalized presumption presumption .................................................................. 9 9
B. B.
Young’s of proof Young's reliance reliance on on the the INA’s INA's burden burden of proof provisions is misplaced because what a conviction conviction provisions is misplaced because what a “necessarily” entails is a a pure law ........... 13 13 "necessarily" entails is pure question question of of law
C. C.
Contrary to Young, concluded that that Contrary to Young, Moncrieffe Moncrieffe concluded noncitizens should not be penalized for the noncitizens should not be penalized for the unavailability conviction records whose unavailability of of conviction records whose existence is beyond control ..................... 21 21 existence is beyond noncitizens’ noncitizens' control
D. D.
Reaffirming would create create a a circuit circuit split split on on Reaffirming Young Young would the of Moncrieffe the meaning 26 meaning of Moncrieffe........................................... 26
E. E.
The evaluation ambiguous convictions convictions also also The evaluation of of ambiguous requires between the requires distinguishing distinguishing between the applicable applicable burden of of production and burden burden of 29 burden production and of proof proof .................. 29
CONCLUSION CONCLUSION ....................................................................................... 36 36 ADDENDUM ADDENDUM CERTIFICATE CERTIFICATE OF COMPLIANCE OF COMPLIANCE CERTIFICATE OF CERTIFICATE OF SERVICE SERVICE
ii ii
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TABLE OF AUTHORITIES AUTHORITIES TABLE OF Page(s) Page(s) Federal Federal Cases Cases Almanza-Arenas v. Almanza-Arenas v. Holder, Holder, 771 1184 (9th 2014) ............................................................. 17 (9th Cir. Cir. 2014) 771 F.3d F.3d 1184 17 Almanza-Arenas v. Almanza-Arenas v. Lynch, Lynch, 815 F.3d 1, 4, 4, 5, 5, 12, 12, 13, 13, 14, 14, 17 17 815 F.3d 469 469 (9th (9th Cir. Cir. 2015) 2015) ................................. 1, Berhe Berhe v. v. Gonzales, Gonzales, 464 (1st Cir. 464 F.3d F.3d 74 74 (1st Cir. 2006) 2006) ........................................................... 32, 32, 33 33 Brown Brown v. v. Gardner, Gardner, 513 115 (1994) (1994) ............................................................................. 17 513 U.S. U.S. 115 17 Budiono Budiono v. v. Lynch, Lynch, __ F.3d 12-71804, 2016 F.3d __,, No. No. 12-71804, 2016 WL WL 5112030 5112030 (9th Cir. 2016)..................................................................... 31 (9th Cir. Sept. Sept. 21, 21, 2016) 31 Carachuri-Rosendo Carachuri-Rosendo v. v. Holder, Holder, 21 560 (2010) ............................................................................. 21 560 U.S. U.S. 563 563 (2010) Chang-Cruz Att’y Gen., Chang-Cruz v. v. Att'y Gen., No. 14-4570, 2016 WL WL 4446063 No. 14-4570, 2016 (3d Cir. Aug. 24, 4446063 (3d Cir. Aug. 24, 2016) 2016) .................... 28 28 Criollo Criollo v. v. Lynch, Lynch, 647 App’x 731 (9th Cir. 2016)......................................................... 31 647 F. F. App'x 731 (9th Cir. 2016) 31 Descamps Descamps v. v. United United States, States, 133 S. 2276 (2013) (2013) ......................................................... 4, 4, 10, 10, 11, 11, 16 16 133 S. Ct. Ct. 2276 Esparza-Recendez Esparza-Recendez v. v. Holder, Holder, 526 App’x 886 (10th Cir. 526 F. F. App'x 886 (10th Cir. 2013) 2013)....................................................... 33 33 Garcia Garcia v. v. Holder, Holder, 584 1288 (10th 584 F.3d F.3d 1288 (10th Cir. Cir. 2009) 2009) ........................................................... 28 28 Griffiths INS, Griffiths v. v. INS, 243 (1st Cir. 243 F.3d F.3d 45 2001) ................................................................. 33 45 (1st Cir. 2001) 33 iii iii
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Johnson Att’y Gen., Johnson v. v. Att'y Gen., 605 App’x 138 138 (3d (3d Cir. 605 F. F. App'x Cir. 2015) 2015) .......................................................... 28 28 Judulang Judulang v. v. Holder, Holder, 35 (2011) ........................................................................... 35 132 S. 132 S. Ct. Ct. 476 476 (2011) Le v. Le v. Lynch, Lynch, 819 F.3d (5th Cir. 2016) ................................................................. 29 819 F.3d 98 98 (5th Cir. 2016) 29
Martinez Martinez v. v. Mukasey, Mukasey, 551 113 (2d 551 F.3d F.3d 113 (2d Cir. Cir. 2008) 2008) ................................................................ 27 27 Mathis Mathis v. v. United United States, States, 136 14 136 S. 2243 (2016) (2016) ......................................................................... 14 S. Ct. Ct. 2243 Mellouli Mellouli v. v. Lynch, Lynch, 10, 14, 14, 23, 135 S. 1980 (2015) (2015) ....................................................... 10, 135 S. Ct. Ct. 1980 23, 33 33 Microsoft P’ship, Microsoft Corp. Corp. v. v. i4i i4i Ltd. Ltd. P'ship, 91 (2011) (2011) ............................................................................... 15 564 564 U.S. U.S. 91 15 Miller Miller v. v. Gammie, Gammie, 335 889 (9th 335 F.3d F.3d 889 (9th Cir. Cir. 2003) 2003) ................................................................. 3 3 Moncrieffe Moncrieffe v. v. Holder, Holder, 133 S. 1678 (2013) (2013) ................................................................. passim passim 133 S. Ct. Ct. 1678 Munyakazi Munyakazi v. v. Lynch, Lynch, F.3d __,, No. __ F.3d 15-1735, 2016 No. 15-1735, 2016 WL WL 3670075 3670075 (4th Cir. Cir. Jul. (4th Jul. 11, 11, 2016) 2016) ........................................................................ 31 31 Nijhawan Nijhawan v. v. Holder, Holder, 557 557 U.S. U.S. 29 29 (2009) (2009) ............................................................................... 20 20 Prison Legal Prison Legal News News v. v. Columbia Columbia Cty., Cty., 942 1068 (D. 24 942 F. F. Supp. Supp. 2d 2d 1068 (D. Or. Or. 2013) 2013) .................................................... 24 Rosas-Castaneda Rosas- Castaneda v. v. Holder, Holder, 655 875 (9th 2011) ......................................................... 35, 655 F.3d F.3d 875 (9th Cir. Cir. 2011) 35, 36 36 Salem Salem v. v. Holder, Holder, 647 111 (4th (4th Cir. Cir. 2011) 2011) ............................................................... 28 647 F.3d F.3d 111 28 iv iv
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Sanchez Sanchez v. v. Holder, Holder, 757 Cir. 2014) 2014) ............................................................... 29 757 F.3d F.3d 712 712 (7th (7th Cir. 29 Sauceda Sauceda v. v. Lynch, Lynch, 5, 9, 9, 10, 14, 16, 16, 20, 20, 26 26 819 F.3d 2016) .................... 5, 10, 11, 11, 12, 12, 14, 819 F.3d 526 526 (1st (1st Cir. Cir. 2016) Scarlett of Homeland Scarlett v. v. U.S. U.S. Dep’t Dep't of Homeland Sec., Sec., 311 F. F. App'x 311 App’x 385 (2d Cir. 385 (2d Cir. 2009) 2009) .......................................................... 27 27 Shepard Shepard v. v. United United States, States, 544 13 (2005) 544 U.S. 16 U.S. 13 (2005) ............................................................................... 16 Syblis Att’y Gen., Syblis v. v. Att'y Gen., 2014) ................................................................ 29 763 763 F.3d F.3d 348 348 (3d (3d Cir. Cir. 2014) 29 Taylor Taylor v. v. United United States, States, 16, 22 22 495 (1990) ....................................................................... 16, 495 U.S. U.S. 575 575 (1990) Thomas Att’y Gen., Thomas v. v. Att'y Gen., 625 134 (3d 625 F.3d F.3d 134 (3d Cir. Cir. 2010) 2010) ................................................................ 27 27 United United States States v. v. Lindsey, Lindsey, 634 (9th Cir. Cir. 2011) 2011) ................................................................. 3 634 F.3d F.3d 541 541 (9th 3 United United States States v. v. Norbury, Norbury, 492 1012 (9th 2007) ............................................................. 15 492 F.3d F.3d 1012 (9th Cir. Cir. 2007) 15 United United States States v. v. Seschillie, Seschillie, Cir. 2002) 310 1208 (9th 2002) ............................................................. 15 310 F.3d F.3d 1208 (9th Cir. 15 United United States States v. v. White, White, 606 144 (4th F.3d 144 (4th Cir. 606 F.3d Cir. 2010) 2010) ............................................................... 23 23 United ex rel. United States States ex rel. Mylius Mylius v. v. Uhl, Uhl, 210 860 (2d 1914) .............................................................. 22, 210 F. Cir. 1914) 22, 26 F. 860 (2d Cir. 26 United ex rel. United States States ex rel. Zaffarano Zaffarano v. v. Corsi, Corsi, 63 (2d Cir. 1933) .................................................................. 26 63 F.2d F.2d 757 757 (2d Cir. 1933) 26 Young Young v. v. Holder, Holder, 697 18, 21, 2012) ..............................1, 1, 2, 2, 3, 3, 6, 6, 14, 14, 18, 697 F.3d F.3d 976 976 (9th (9th Cir. Cir. 2012) 21, 36 36
v
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Administrative Decisions Administrative Decisions Matter of A-G-G-, A-G-G-, Matter of 25 I. I. & & N. N. Dec. Dec. 486 486 (BIA 2011) ..................................................... 30, 31 25 (BIA 2011) 30, 31 Matter of Acosta, Acosta, Matter of 19 I. & & N. N. Dec. Dec. 211 1985) ........................................................... 30 19 I. 211 (BIA (BIA 1985) 30 Matter of B—, B—, Matter of 4 1951) ............................................................. 12 4 I. I. & & N. N. Dec. Dec. 493 493 (BIA (BIA 1951) 12 In E-H-, In re re E-H-, AXXXXXX689 (BIA 20, 2015) 2015)..................................................... 12 AXXXXXX689 (BIA May May 20, 12 Matter of Mogharrabi, Matter of Mogharrabi, 19 I. & & N. N. Dec. Dec. 439 439 (BIA 19 I. (BIA 1987) 1987) ........................................................... 30 30 In In re re S-K-, S-K-, 23 I. I. & & N. N. Dec. Dec. 936 23 (BIA 2006) 936 (BIA 2006) ........................................................... 30 30 Federal Statutes Federal Statutes 8 U.S.C. § 1158(b)(2)(A) 1158(b)(2)(A)........................................................................... 19 19 8 U.S.C. § 8 U.S.C. § 1158(b)(2)(A)(vi) 1158(b)(2)(A)(vi) ..................................................................... 30 8 U.S.C. § 30 8 U.S.C. § 1158(b)(2)(B)(i) 1158(b)(2)(B)(i) ....................................................................... 25 8 U.S.C. § 25 8 U.S.C. § 1182(a)(3) 1182(a)(3)................................................................................ 19 19 8 U.S.C. § 8 U.S.C. § 1227(a)(4)(A)(ii) 1227(a)(4)(A)(ii) ...................................................................... 19 19 8 U.S.C. § 8 U.S.C. § 1227(a)(4)(B) 1227(a)(4)(B)........................................................................... 19 19 8 U.S.C. § 8 U.S.C. § 1229a(c)(4) 1229a(c)(4) .............................................................................. 19 19 8 U.S.C. § 8 U.S.C. § 1229a(c)(4)(B) 1229a(c)(4)(B) ......................................................................... 35 8 U.S.C. § 35 8 U.S.C. § 1229b(a) 1229b(a) .................................................................................. 25 8 U.S.C. § 25 8 U.S.C. § 1229b(a)(1) 1229b(a)(1).............................................................................. 17 17 8 U.S.C. § 8 U.S.C. § 1229b(a)(2) 1229b(a)(2).............................................................................. 17 17 8 U.S.C. § vi vi
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8 U.S.C. § 1229b(a)(3) 1229b(a)(3).................................................................. 10, 10, 15, 8 U.S.C. § 15, 17 17 8 U.S.C. § 1229b(b)(1) 1229b(b)(1)........................................................................ 10, 10, 25 8 U.S.C. § 25 8 U.S.C. § 1229b(b)(2) 1229b(b)(2).............................................................................. 25 8 U.S.C. § 25 8 U.S.C. § 1229b(c) 1229b(c) .................................................................................. 19 19 8 U.S.C. § 8 U.S.C. § 1255(a) 1255(a) .................................................................................... 25 8 U.S.C. § 25 8 U.S.C. § 1255(c) 1255(c) .................................................................................... 19 8 U.S.C. § 19 8 U.S.C. § 1255(h)(2)(B) 1255(h)(2)(B) .......................................................................... 25 8 U.S.C. § 25 8 U.S.C. § 1255(1)(1)(B) 1255(l)(1)(B) ........................................................................... 25 8 U.S.C. § 25 8 U.S.C. § 1427(a)(3) 1427(a)(3)................................................................................ 25 8 U.S.C. § 25 State Statutes Statutes State 22 Cal. Gov’t Code § 68152(c)(7) Cal. Gov't Code § 68152(c)(7) .................................................................. 22 22 Cal. Gov’t Code § 68152(c)(8) Cal. Gov't Code § 68152(c)(8) .................................................................. 22
Regulations Regulations 30, 31, 8 C.F.R. § 1240.8(d) 1240.8(d) ........................................ 14, 14, 19, 19, 30, 8 C.F.R. § 31, 32, 32, 33, 33, 34, 34, 35 35
Other Authorities* Authorities* Other Alina Das, Penalties of of Criminal Alina Das, The The Immigration Immigration Penalties Criminal Convictions: Analysis in Convictions: Resurrecting Resurrecting Categorical Categorical Analysis in Immigration 86 N.Y.U. L. Rev. 1669 (2011) (2011) ............................. 22 22 Immigration Law, Law, 86 N.Y.U. L. Rev. 1669 Amnesty Amnesty International, International, Jailed Jailed Without Without Justice: Justice: Immigration Immigration Detention Detention in in the the USA USA (2009), (2009), http://tinyurl.com/JailedWithoutJustice 24 http://tinyurl.com/JailedWithoutJustice ............................................ 24
McCormick on McCormick on Evidence Evidence (7th (7th ed. ed. 2013) 2013) .................................................. 15 15
All web sites last last visited visited October ** All web sites October 28, 28, 2016. 2016. vii vii
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National A Broken National Immigrant Immigrant Law Law Center, Center, A Broken System: System: Confidential Confidential Reports Reports Reveal Reveal Failures Failures in in U.S. U.S. Immigration Immigration Detention (2009), Detention Centers Centers (2009), http://tinyurl.com/ABrokenSystem..................................................... 24 24 http://tinyurl.com/ABrokenSystem North Administrative Office North Carolina Carolina Administrative Office of of the the Courts, Courts, The The North Judicial System North Carolina Carolina Judicial System (2008 (2008 ed.), ed.), http://tinyurl.com/NCJudicialSystem http://tinyurl.com/NCJudicialSystem................................................. 23 23 Prison Postcard-Only Prison Policy Policy Initiative, Initiative, Return Return to to Sender: Sender: Postcard-Only Mail Policies in Mail Policies in Jail Jail (2013), (2013), http://tinyurl.com/ReturnToSenderReport 24 http://tinyurl.com/ReturnToSenderReport ......................................... 24 Records Management Division, Records Management Division, Superior Superior Court Court of of California, California, San Mateo County, by Mail, Mail, San Mateo County, Request Request Copies Copies by http://tinyurl.com/RequestCopiesByMail http://tinyurl.com/RequestCopiesByMail ........................................... 23 23 Robert A. Robert A. Katzmann, Profession and Katzmann, The The Legal Legal Profession and the the Unmet Unmet Needs of the Poor, 21 J. Legal Needs of the Immigrant Immigrant Poor, 21 Geo. Geo. J. Legal Ethics Ethics 3 3 (2008) 24 (2008)................................................................................................... 24 Criminal Superior Superior Court Court of of California, California, Santa Santa Clara Clara County, County, Criminal Case Records, http://tinyurl.com/CriminalCaseRecords http://tinyurl.com/CriminalCaseRecords .................... 23 23 Case Records,
U.S. Justice, FY Yearbook, U.S. Department Department of of Justice, FY 2015 2015 Statistics Statistics Yearbook, 24 http://tinyurl.com/2015StatisticsYearbook http://tinyurl.com/2015StatisticsYearbook ........................................ 24
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INTEREST OF AMICI AMICI INTEREST OF Amici organizations with Amici include include organizations with expertise in the expertise in the
interrelationship of immigration law interrelationship of criminal criminal and and immigration law and and organizations organizations providing Amici have providing direct direct removal-defense removal-defense assistance assistance to to noncitizens. noncitizens.11 Amici have a interest in in assuring classification of a strong strong interest assuring that that rules rules governing governing classification of criminal convictions are fair long-standing precedent criminal convictions are fair and and accord accord with with long-standing precedent on which immigrants, their lawyers, lawyers, and on which immigrants, their and the the courts courts have have relied relied for for nearly a century. century. This This case case is critical interest Amici because because the nearly a is of of critical interest to to Amici the analysis used by by this this Court assess the immigration consequences consequences of analysis used Court to to assess the immigration of and convictions fundamentally in the immigration and convictions fundamentally affects affects due due process process in the immigration criminal criminal systems. issued its in systems. Since Since the the Supreme Supreme Court Court issued its decision decision in
Moncrieffe 133 S. 1678 (2013), (2013), Amici Amici have appeared Moncrieffe v. v. Holder, Holder, 133 S. Ct. Ct. 1678 have appeared before this this Court cases to address why why Young before Court in in five five cases to address Young v. v. Holder, Holder, 697 697 F.3d F.3d 976 banc), is is irreconcilable irreconcilable with 976 (9th (9th Cir. Cir. 2012) 2012) (en (en banc), with Moncrieffe. Moncrieffe. Amici appeared before this banc stages Amici appeared before this Court Court at at both both the the panel panel and and en en banc stages of Almanza-Arenas v. of Almanza-Arenas v. Lynch, Lynch, 815 815 F.3d F.3d 469 469 (9th (9th Cir. Cir. 2015) 2015) (en (en banc); banc); Amici also before this this court court in in Lopez-Villa 11Amici also appeared appeared before Lopez-Villa v. v. Lynch, Lynch, No. No. 11-
1 More More 1
information about the Amici Amici is is included included in in the for leave information about the the motion motion for leave to file this brief. to file this brief.
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73518 and submitted 73518 (argued (argued and submitted on on Oct. Oct. 7, 7, 2016); 2016); Marinelarena Marinelarena v. v. Lynch, Lynch, No. 14-72003 (submission (submission withdrawn withdrawn and No. 14-72003 and case case deferred deferred pending pending issuance of of the the mandate 14issuance mandate in in United United States States v. v. Martinez-Lopez, Martinez-Lopez, No. No. 1450014, Antonio v. 13-71256 (respondent’s 50014, on on Sept. Sept. 26, 26, 2016); 2016); Antonio v. Lynch, Lynch, No. No. 13-71256 (respondent's brief due 2016); and brief due on on Nov. Nov. 29, 29, 2016); and Vasquez Vasquez v. v. Lynch, Lynch, No. No. 09-72489 09-72489 2016). (supplemental briefing completed on Mar. 15, 2016). (supplemental briefing completed on Mar. 15,
Pursuant App. P. Amici state counsel Pursuant to to Fed. Fed. R. R. App. P. 29(c)(5), 29(c)(5), Amici state that that no no counsel for the brief in in whole whole or or in in part, for the party party authored authored this this brief part, and and no no party, party, party’s Amici and counsel party's counsel, counsel, or or person person or or entity entity other other than than Amici and their their counsel contributed money intended to fund the contributed money that that was was intended to fund the preparing preparing or or submitting brief. submitting of of the the brief. SUMMARY SUMMARY OF OF ARGUMENT ARGUMENT This Court Court should This should hold (9th hold that that Young Young v. v. Holder, Holder, 697 697 F.3d F.3d 976 976 (9th Cir. 2012) (en banc), Cir. 2012) (en banc), is is clearly clearly irreconcilable irreconcilable with with Moncrieffe Moncrieffe v. v. Holder, Holder,
133 S. 1678 (2013), (2013), as an ambiguous of conviction conviction 133 S. Ct. Ct. 1678 as to to whether whether an ambiguous record record of bars a a noncitizen like Petitioner bars noncitizen like Petitioner from from relief relief from from removal removal under under the the modified categorical approach. approach. Young “an inconclusive modified categorical Young held held that that "an inconclusive record record of conviction does cancellation of of of conviction does not not demonstrate demonstrate eligibility eligibility for for cancellation removal,” because noncitizens bear the burden of proving their their removal," because noncitizens bear the burden of proving
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eligibility. at 989. later decision in eligibility. 697 697 F.3d F.3d at 989. The The Supreme Supreme Court’s Court's later decision in Moncrieffe is a Moncrieffe clarifies, clarifies, however, however, that that the the analysis analysis of of a a conviction conviction is a purely inquiry that “the same in both both [the and purely legal legal inquiry that operates operates "the same in [the removal removal and cancellation] contexts," contexts,” 133 133 S. 1685 n.4, a merely cancellation] S. Ct. Ct. at at 1685 n.4, so so a merely ambiguous ambiguous record conviction does conviction disqualifying disqualifying record of of conviction does not not render render a a conviction regardless bears an an evidentiary evidentiary burden burden of regardless of of which which party party bears of proof. proof. Evidentiary burdens of courts are Evidentiary burdens of proof proof have have no no role role to to play play when when courts are considering questions like the considering questions of of law law like the one one here. here. Young is Young is "clearly “clearly irreconcilable” and should should be be irreconcilable" with with Moncrieffe Moncrieffe and
“reject[ed] … as having been effectively "reject[ed] ... as having been effectively overruled.” overruled." Miller Miller v. v. Gammie, Gammie, 335 889, 900 2003) (en banc); see, see, e.g., e.g., United 335 F.3d F.3d 889, 900 (9th (9th Cir. Cir. 2003) (en banc); United States States v. v. Lindsey, applying Miller Lindsey, 634 634 F.3d F.3d 541 541 (9th (9th Cir. Cir. 2011) 2011) (three-judge (three-judge panel panel applying Miller to banc decision intervening Supreme to reject reject a a prior prior en en banc decision based based on on intervening Supreme Court Court precedent). clarified that courts always always "must “must presume precedent). Moncrieffe Moncrieffe clarified that courts presume that that the conviction 'rested ‘rested upon the acts’ the conviction upon nothing nothing more more than than the the least least of of the acts' criminalized,” not 133 S. 1684 (emphasis added) criminalized," not the the most. most. 133 S. Ct. Ct. at at 1684 (emphasis added) (internal citation and brackets omitted). A conviction conviction under a broader (internal citation and brackets omitted). A under a broader state statute presumptively is not a disqualifying state statute presumptively is not a disqualifying predicate predicate offense. offense. That is overcome overcome only if the “conviction of That presumption presumption is only if the "conviction of the the state state offense offense
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‘necessarily’ involved" involved” the generic `necessarily' the elements elements of of the the narrower narrower federal federal generic offense. added) (internal citation omitted). An offense. Id. Id. (emphasis (emphasis added) (internal citation omitted). An high bar. bar. ambiguous conviction simply ambiguous record record of of conviction simply cannot cannot meet meet that that high
Because adopted the opposite presumption—treating convictions Because Young Young adopted the opposite presumption—treating convictions as incompatible with as disqualifying disqualifying until until proven proven otherwise—it otherwise—it is is incompatible with Moncrieffe. Moncrieffe. As Judge Judge Watford this Court’s “decision in in Young As Watford has has explained, explained, this Court's "decision Young [is] incompatible with with the categorical approach, [is] fundamentally fundamentally incompatible the categorical approach, especially especially after after Descamps Descamps and and Moncrieffe Moncrieffe clarified clarified the the elements-focused elements-focused nature Almanza-Arenas v. 815 F.3d nature of of the the inquiry.” inquiry." Almanza-Arenas v. Lynch, Lynch, 815 F.3d 469, 469, 489 489 (9th banc) (Watford, (Watford, J., J., concurring). concurring). Under (9th Cir. Cir. 2015) 2015) (en (en banc) Under the the categorical and are categorical and modified modified categorical categorical approach, approach, what what elements elements are established by a a conviction conviction is is a a question law. Indeed, as the the Supreme established by question of of law. Indeed, as Supreme Court in Descamps Court explained explained in Descamps v. v. United United States, States, the the modified modified categorical categorical approach is not a "modified “modified factual" factual” approach any "evidence“evidenceapproach is not a approach requiring requiring any based” inquiry, inquiry, but but rather “a tool tool for for implementing based" rather just just "a implementing the the categorical categorical approach.” 133 S. 2284, 2287 (2013) (citation approach." 133 S. Ct. Ct. 2276, 2276, 2284, 2287 (2013) (citation omitted). omitted). The adopted Judge Judge Watford’s view in The First First Circuit Circuit adopted Watford's view in the the only only postpostMoncrieffe consider this Moncrieffe precedential precedential decision decision to to consider this question. question. Expressly Expressly
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rejecting it concluded concluded that least-criminalized-acts rejecting Young, Young, it that Moncrieffe’s Moncrieffe's least-criminalized-acts presumption “dictates the case where presumption "dictates the outcome” outcome" of of the the case where the the record record is is ambiguous, bears the burden of ambiguous, regardless regardless of of who who bears the evidentiary evidentiary burden of proof. proof. Sauceda a Sauceda v. v. Lynch, Lynch, 819 819 F.3d F.3d 526, 526, 531, 531, 532 532 n.10 n.10 (1st (1st Cir. Cir. 2016). 2016). When When a record conviction is is ambiguous, “the unrebutted record of of conviction ambiguous, "the unrebutted Moncrieffe Moncrieffe presumption a matter law,” a a noncitizen “was not presumption applies, applies, and, and, as as a matter of of law," noncitizen "was not disqualifying. convicted of a [predicate conviction is convicted of a [predicate offense],” offense]," so so the the conviction is not not disqualifying.
Id. at 532. And because because the the modified categorical approach approach answers answers a Id. at 532. And modified categorical a “purely 'legal ‘legal question,’” burden of “does not come into into play.” "purely question,"' the the burden of proof proof "does not come play." Id. at 534 citation omitted); Almanza-Arenas, 815 815 F.3d Id. at 534 (internal (internal citation omitted); see see also also Almanza-Arenas, F.3d determination" at (Watford, J., J., concurring) concurring) (This is a a "purely “purely legal legal determination” at 489 489 (Watford, (This is
regarding “its resolution regarding the the elements elements of of the the offense, offense, so so "its resolution is is unaffected unaffected by by which party bears the the burden burden of is why why "Moncrieffe “Moncrieffe which party bears of proof.”). proof."). That That is explicitly that its its 'analysis ‘analysis is is the same in in both both [the explicitly stated stated that the same [the relief relief and and removal] contexts’” when comes to examination of of a a prior prior criminal criminal removal] contexts"' when it it comes to the the examination conviction. Sauceda, 819 F.3d at 534 133 S. at conviction. Sauceda, 819 F.3d at 534 (quoting (quoting Moncrieffe, Moncrieffe, 133 S. Ct. Ct. at
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1685 n.4). This Court 1685 n.4). This Court should should now now follow follow suit suit and and recognize recognize that that Moncrieffe Moncrieffe effectively effectively overruled overruled Young. Young. Young is clearly clearly irreconcilable irreconcilable with in another another respect Young is with Moncrieffe Moncrieffe in respect as well. While acknowledging that “some aliens will surely as well. While acknowledging that "some aliens will surely face face challenges” in in attempting attempting to locate state court records that challenges" to locate state court records showing showing that they lack a a disqualifying conviction, Young concluded "that “that result is not they lack disqualifying conviction, Young concluded result is not so absurd that could not so absurd that Congress Congress could not have have intended intended it.” it." 697 697 F.3d F.3d at at 989. 989. Moncrieffe has since since undercut by reasoning whether Moncrieffe has undercut this this rationale rationale by reasoning that that whether state court records likely to categorical rule state court records are are likely to exist exist bears bears on on how how the the categorical rule should be applied. applied. The “[t]he categorical categorical approach approach should be The Court Court explained explained that that "[t]he unfairness" in in was designed avoid” precisely “potential unfairness” was designed to to avoid" precisely the the sort sort of of "potential
which "two “two noncitizens, ‘convicted of’ the same same offense, offense, might which noncitizens, each each 'convicted of the might obtain obtain different different aggravated aggravated felony felony determinations determinations depending depending on on what what evidence remains 133 S. at 1690 1690 (emphasis evidence remains available….” available...." Moncrieffe, Moncrieffe, 133 S. Ct. Ct. at (emphasis added). And it it is is especially impose such burden on added). And especially unfair unfair to to impose such a a burden on noncitizens where the the noncitizen noncitizens where noncitizen can can present present only only a a limited limited set set of of
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documents—documents whose creation creation and beyond documents—documents whose and maintenance maintenance are are beyond the control. the noncitizen’s noncitizen's control. A decision would not A decision that that Moncrieffe Moncrieffe effectively effectively overruled overruled Young Young would not require immigration judges individuals require immigration judges to to grant grant the the applications applications of of individuals requesting it would requesting these these forms forms of of relief. relief. Rather, Rather, it would remove remove a a mandatory mandatory bar in in cases where the bar cases where the record record does does not not necessarily necessarily demonstrate demonstrate a a prior prior disqualifying conviction. disqualifying conviction. Noncitizens be required Noncitizens would would still still be required to to satisfy satisfy
the criteria and also to immigration judges the other other eligibility eligibility criteria and also to persuade persuade immigration judges to to grant relief grant a matter of discretion. 133 S. at 1692. 1692. relief as as a matter of discretion. See See Moncrieffe, Moncrieffe, 133 S. Ct. Ct. at
Therefore, any concerns concerns raised by an ambiguous record conviction Therefore, any raised by an ambiguous record of of conviction could properly be considered considered in in that but a a could properly be that discretionary discretionary phase, phase, but conviction with with an an ambiguous ambiguous record consideration conviction record does does not not preclude preclude all all consideration of an of an application application in in the the first first place. place.
ARGUMENT ARGUMENT A Record Of Conviction That Is Ambiguous Does Not A Record Of Conviction That Is Ambiguous Does Not Disqualify A Noncitizen Noncitizen From Disqualify A From Being Being Considered Considered For For Humanitarian Relief Relief From From Removal. Humanitarian Removal. Young is Young is clearly clearly irreconcilable irreconcilable with with Moncrieffe because Young Moncrieffe because Young
treated whether a constitutes a bar to treated the the question question of of whether a prior prior conviction conviction constitutes a bar to relief factual inquiry which the immigration statute’s burdenrelief as as a a factual inquiry as as to to which the immigration statute's burden-
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of-proof applies. Under Under Moncrieffe, when the the record of-proof provision provision applies. Moncrieffe, however, however, when record of conviction of conviction is is merely ambiguous, a merely ambiguous, a noncitizen noncitizen such such as as Petitioner Petitioner was was
not “necessarily” convicted convicted of a matter not "necessarily" of a a disqualifying disqualifying offense, offense, as as a matter of of law. law. Moncrieffe holds that convictions must Moncrieffe holds that prior prior convictions must be be presumed presumed to to rest rest only only on on the of the criminalized, until the least least of the acts acts criminalized, until and and unless unless a a record record of of conviction conviction shows because the the inquiry the categorical categorical approach is shows otherwise, otherwise, because inquiry under under the approach is what a a conviction conviction "necessarily" “necessarily” entails, what acts what entails, not not what acts a a noncitizen noncitizen committed. committed. As the the First a conviction with an As First Circuit Circuit recently recently recognized, recognized, a conviction with an ambiguous cannot overcome ambiguous record record cannot overcome that that least-acts-criminalized least-acts-criminalized presumption, so it it is is not A. Young presumption, so not a a disqualifying disqualifying offense. offense. Infra Infra § § A. Young relied burden of but what what a a conviction conviction relied on on the the INA’s INA's burden of proof proof provisions, provisions, but “necessarily” entails is a a legal legal question, and thus "necessarily" entails is question, and thus the the evidentiary evidentiary B. This burden of of proof affect the This burden proof does does not not affect the analysis. analysis. Infra Infra § § B.
understanding is consistent consistent with with Moncrieffe’s understanding of of Moncrieffe Moncrieffe is Moncrieffe's recognition recognition that availability of court records is relevant that the the availability of state state court records is relevant to to how how the the reaffirming categorical rule applied. Infra Moreover, reaffirming categorical rule should should be be applied. Infra § § C. C. Moreover,
Young would create create a circuit split. Infra § § D. D. Finally, Finally, Young would a post-Moncrieffe post-Moncrieffe circuit split. Infra this with the this understanding understanding of of Moncrieffe Moncrieffe is is consistent consistent with the established established
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distinction between burdens burdens of burdens of as well distinction between of proof proof and and burdens of production, production, as well as applicable regulations. as the the agency’s agency's own own reading reading of of the the applicable regulations. Infra Infra §§ E. E. A. A.
Under Moncrieffe, Moncrieffe, an Under an ambiguous ambiguous record record of of conviction conviction disqualifying does “necessarily” establish does not not "necessarily" establish a a disqualifying offense, the conviction under offense, so so the conviction is is not not disqualifying disqualifying under the least-acts-criminalized presumption. the least-acts-criminalized presumption.
Under an ambiguous ambiguous record of conviction conviction does Under Moncrieffe, Moncrieffe, an record of does not not render a conviction conviction disqualifying, which party bears the the render a disqualifying, regardless regardless of of which party bears burden of of proof. as much in the recently held held as much in the only only burden proof. The The First First Circuit Circuit recently precedential squarely address address precedential circuit circuit court court decision decision since since Moncrieffe Moncrieffe to to squarely noncitizen from from whether an ambiguous record conviction bars bars a a noncitizen whether an ambiguous record of of conviction seeking discretionary discretionary relief seeking from removal. 819 F.3d relief from removal. Sauceda, Sauceda, 819 F.3d 526. 526.
Sauceda that Moncrieffe “established [a Sauceda held held that Moncrieffe "established [a least-actsleast-actscriminalized] criminalized] presumption presumption that that dictates dictates the the outcome outcome of of this this case.” case." 819 819
F.3d at 529, The First concluded that a court court is faced F.3d at 529, 531. 531. The First Circuit Circuit concluded that when when a is faced with an ambiguous record “the unrebutted with an ambiguous record of of conviction, conviction, "the unrebutted Moncrieffe Moncrieffe presumption a matter law,” a a noncitizen “was not presumption applies, applies, and, and, as as a matter of of law," noncitizen "was not disqualifying. convicted of a [predicate conviction is convicted of a [predicate offense],” offense]," so so the the conviction is not not disqualifying.
Id. at 532. And because because the the modified categorical approach approach answers answers a Id. at 532. And modified categorical a “purely 'legal ‘legal question,’” burden of “does not come into into play.” "purely question,"' the the burden of proof proof "does not come play."
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Id. at 534. Like the Id. at 534. Like the First First Circuit, Circuit, this this Court Court should should recognize recognize that that Moncrieffe is dispositive Moncrieffe is dispositive here. here. Petitioner's eligibility eligibility for Petitioner’s for cancellation cancellation turns turns on on whether whether he he has has
been "convicted “convicted of any aggravated aggravated felony.” 8 U.S.C. § 1229b(a)(3) 1229b(a)(3) been of any felony." 8 U.S.C. § (emphasis see id. 1229b(b)(1). "'Conviction' “‘Conviction’ is is 'the ‘the relevant (emphasis added); added); see id. § § 1229b(b)(1). relevant noncitizen statutory inquiry centers centers on “what offense statutory hook,’” hook,' so so the the inquiry on "what offense the the noncitizen
was 'convicted' ‘convicted’ of, not what what acts acts he committed.” Moncrieffe, 133 S. was of, not he committed." Moncrieffe, 133 S. Ct. Ct. at 1685 (internal citation omitted). Accordingly, the categorical at 1685 (internal citation omitted). Accordingly, the categorical approach “if a a conviction approach requires requires courts courts to to determine determine "if conviction of of the the state state offense ‘necessarily’ involved involved ... facts equating offense 'necessarily' ... facts equating to to the the generic generic federal federal offense.” at 1684 1684 (citation and brackets brackets omitted). The key word is is offense." Id. Id. at (citation and omitted). The key word “necessarily.” "Because “Because [courts] what the conviction "necessarily." [courts] examine examine what the state state conviction necessarily involved, not necessarily involved, not the the facts facts underlying underlying the the case, case, [courts] [courts] must must presume that conviction 'rested ‘rested upon least of presume that the the conviction upon nothing nothing more more than than the the least of the acts’ criminalized, criminalized, and the acts' and then then determine determine whether whether even even those those acts acts are are encompassed by the added) encompassed by the generic generic federal federal offense.” offense." Id. Id. (emphasis (emphasis added) (citation brackets omitted); 135 S. (citation and and brackets omitted); see see also also Mellouli Mellouli v. v. Lynch, Lynch, 135 S. Ct. Ct. 1980, 1987 1987 (2015) (2015) (categorical asks "the “the legal what a 1980, (categorical rule rule asks legal question question of of what a conviction necessarily 133 S. at 2284 2284 conviction necessarily established”); established"); Descamps, Descamps, 133 S. Ct. Ct. at
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(internal citation omitted) conviction based can (internal citation omitted) (“[A] ("[A] conviction based on on a a guilty guilty plea plea can qualify as [a if the ‘necessarily admitted qualify as [a generic generic offense] offense] only only if the defendant defendant 'necessarily admitted [the] [the] elements elements of of the the generic generic offense.’”). offense."). The least-acts-criminalized presumption analysis of The least-acts-criminalized presumption governs governs the the analysis of convictions under both the categorical and and modified categorical convictions under both the categorical modified categorical approaches. 819 F.3d at 534. is because because "[t]he “[t]he modified approaches. Sauceda, Sauceda, 819 F.3d at 534. That That is modified categorical approach is not a wholly wholly distinct inquiry,” but but rather “a tool” categorical approach is not a distinct inquiry," rather "a tool" to “help[] implement the categorical approach." approach.” Id. to "help [] implement the categorical Id. (citing (citing Descamps, Descamps, 133 S. at 2285). state statute statute sweeps sweeps in conduct 133 S. Ct. Ct. at 2285). So, So, when when a a state in more more conduct than the than corresponding federal federal offense, conviction under statute the corresponding offense, a a conviction under that that statute
presumptively is not presumptively is not a a disqualifying disqualifying predicate predicate offense. offense. The categorical approach approach may be used to rebut leastThe modified modified categorical may be used to rebut the the leastacts-criminalized 133 S. at 1684 acts-criminalized presumption. presumption. Moncrieffe, Moncrieffe, 133 S. Ct. Ct. at 1684 (citing (citing the approach as as a a "qualification" “qualification” to the the approach to the the presumption). presumption). But But the presumption is rebutted if the “record of conviction of presumption is rebutted only only if the "record of conviction of the the predicate predicate offense “particular offense offense necessarily necessarily establishes” establishes" that that the the "particular offense the the noncitizen was convicted convicted of” was the the narrower corresponding to noncitizen was of was narrower offense offense corresponding to a federal crime. crime. Id. 1684, 1688 1688 (emphasis a federal Id. at at 1684, (emphasis added); added); see see also also Descamps, Descamps, 133 S. at 2281-84. the record conviction is is ambiguous, “the 133 S. Ct. Ct. at 2281-84. If If the record of of conviction ambiguous, "the
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unrebutted applies, and, a matter unrebutted Moncrieffe Moncrieffe presumption presumption applies, and, as as a matter of of law,” law," a a noncitizen “was not convicted of noncitizen "was not convicted of [an [an aggravated aggravated felony],” felony]," so so the the conviction is is not 819 F.3d at 532; conviction not disqualifying. disqualifying. Sauceda, Sauceda, 819 F.3d at 532; accord accord Almanza-Arenas v. 815 F.3d (9th Cir. 2015) (en banc) Almanza-Arenas v. Lynch, Lynch, 815 F.3d 469, 469, 488 488 (9th Cir. 2015) (en banc) (Watford, J., concurring) concurring) (where “the Shepard (Watford, J., (where "the Shepard documents documents … ... do do not not establish” which statutory statutory alternative alternative the the noncitizen “was convicted convicted of,” establish" which noncitizen "was of," the “conviction necessarily lesser offense because the "conviction necessarily establishes establishes only” only" the the lesser offense because “the conviction conviction is is deemed to rest on only only the the least least of "the deemed to rest on of the the acts acts criminalized").2 criminalized”).2
As Moncrieffe “[a]mbiguity” regarding a As Moncrieffe put put it, it, "[a]mbiguity" regarding the the nature nature of of a noncitizen’s “means that ‘necessarily’ noncitizen's offense offense "means that the the conviction conviction did did not not 'necessarily' involve facts facts that 133 involve that correspond correspond to to a[] a[] [federal] [federal] offense.” offense." Moncrieffe, Moncrieffe, 133 S. at 1687. 1687. Thus, Thus, when conviction is is ambiguous, S. Ct. Ct. at when a a record record of of conviction ambiguous, the the
In an an unpublished unpublished decision, itself adopted adopted this correct In decision, the the BIA BIA itself this correct Moncrieffe. See See In In re re E-H-, E-H-, AXXXXXX689, at 2 2 (BIA (BIA understanding AXXXXXX689, at understanding of of Moncrieffe. May 20, 20, 2015) in Addendum) Addendum) (“Where May 2015) (attached (attached in ("Where the the statute statute involved, involved, as as here, is ambiguous ambiguous or here, is is divisible, divisible, and and the the record record of of conviction conviction is or inconclusive regarding which element was convicted convicted inconclusive regarding which element the the respondent respondent was under, the conviction conviction does involve facts correspond under, the does not not necessarily necessarily involve facts that that correspond to an aggravated aggravated felony. felony. As As such, such, we to an we find find that that the the respondent respondent has has met met his burden to conviction … his burden to show show that that his his conviction ... does does not not constitute constitute an an aggravated felony and and does bar him from eligibility cancellation eligibility for for cancellation aggravated felony does not not bar him from of accord Matter of B—, (BIA 1951). 1951). 4 I. I. & & N. N. Dec. Dec. 493, 493, 496 496 (BIA of removal.”); removal."); accord Matter of B—, 4 2 2
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noncitizen “was not as a noncitizen "was not convicted convicted of of [the [the federal federal offense],” offense]," as a matter matter of of law. Id. added). As As Judge Judge Watford “It’s true law. Id. (emphasis (emphasis added). Watford explained, explained, "It's true … ... that as to what [the actually did that uncertainty uncertainty remains remains as to what [the noncitizen] noncitizen] actually did to to violate [the violate [the state state statute] statute] …. .... But But uncertainty uncertainty on on that that score score doesn’t doesn't matter. is whether matter. What What matters matters here here is whether [the [the noncitizen’s] noncitizen's] conviction conviction necessarily the fact fact required the offense a necessarily established established … ... the required to to render render the offense a [disqualifying] crime." [disqualifying] crime.” Almanza-Arenas, Almanza-Arenas, 815 at 489 J., 815 F.3d F.3d at 489 (Watford, (Watford, J.,
concurring). concurring). Here, the record conviction does Here, the record of of conviction does not not reveal reveal whether whether the the elements of the the Nevada correspond to a disqualifying elements of Nevada statute statute correspond to a disqualifying offense offense or or not. The conviction conviction therefore not. The therefore does does not not necessarily necessarily establish establish a a disqualifying be presumed disqualifying offense offense and, and, under under Moncrieffe, Moncrieffe, must must be presumed to to rest rest on the the least on criminal acts. Applying Moncrieffe, least criminal acts. Applying Moncrieffe, Petitioner Petitioner was was not not
convicted of a disqualifying conviction poses convicted of a disqualifying offense, offense, so so his his conviction poses no no barrier barrier to to applying applying for for relief. relief. B. B.
on the proof Young’s reliance on the INA’s burden of Young's reliance INA's burden of proof provisions misplaced because because what provisions is is misplaced what a a conviction conviction " “necessarily” necessarily" entails entails is is a a pure pure question question of of law. law.
1. application of 1. Young Young incorrectly incorrectly treated treated the the application of the the modified modified categorical rule a factual as to which a a burden burden of categorical rule as as a factual question, question, as to which of proof proof
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would matter. in using would matter. But But in using the the modified modified categorical categorical approach approach to to evaluate whether Petitioner’s conviction "necessarily" “necessarily” entailed evaluate whether Petitioner's conviction entailed the the elements of the the disqualifying court "answers “answers the ‘legal elements of disqualifying offense, offense, a a court the purely purely 'legal question of what what a conviction necessarily question of a conviction necessarily established.’” established."' Sauceda, Sauceda, 819 819 F.3d at 534 (quoting Mellouli, 135 S. 1987). Because F.3d at 534 (quoting Mellouli, 135 S. Ct. Ct. at at 1987). Because the the modified modified categorical approach answers this this purely legal question, burden of of categorical approach answers purely legal question, the the burden proof “does not come into also Mathis proof "does not come into play.” play." Id.; Id.; see see also Mathis v. v. United United States, States, 136 S. 2243, 2255 2255 n.6 categorical approach approach concerns concerns 136 S. Ct. Ct. 2243, n.6 (2016) (2016) (modified (modified categorical only what a a conviction conviction establishes “as a a legal only what establishes "as legal matter”); matter"); Almanza-Arenas, Almanza-Arenas, is 815 F.3d at 489 J., concurring) concurring) (Whether a prior conviction is 815 F.3d at 489 (Watford, (Watford, J., (Whether a prior conviction
necessarily a disqualifying “is a legal question with a necessarily a disqualifying offense offense "is a legal question with a yes yes or or no no answer is unaffected by which bears the answer … ... [whose] [whose] resolution resolution is unaffected by which party party bears the proof."). burden of of proof.”). burden Young relied relied chiefly on Young chiefly on § 1240.8(d), on 8 8 C.F.R. C.F.R. § 1240.8(d), which which places places on
noncitizens “the burden eligible for for any any noncitizens "the burden of of establishing establishing that that he he or or she she is is eligible requested benefit,” such as cancellation, cancellation, and “proving by requested benefit," such as and "proving by a a preponderance preponderance of of the the evidence evidence that that [a [a possible possible ground ground for for denial denial of of a a benefit] do[es] at 988-89. burden applies benefit] do[es] not not apply.” apply." See See 697 697 F.3d F.3d at 988-89. That That burden applies only of eligibility, like whether Petitioner has has only to to factual factual questions questions of eligibility, like whether Petitioner
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continuously resided in the seven years being continuously resided in the United United States States for for seven years after after being admitted. 8 U.S.C. § 1229b(a)(3); 1229b(a)(3); see see generally generally 2 McCormick on admitted. See See 8 U.S.C. § 2 McCormick on Evidence § 339 Evidence § 339 (7th (7th ed. ed. 2013) 2013) (reflecting (reflecting common common understanding understanding that that the “preponderance of of the the "preponderance the evidence” evidence" standard standard applies applies to to factual factual inquiries). But burdens of are not applicable to to legal inquiries). But burdens of proof proof are not applicable legal questions. questions. n.2 (9th (9th Cir. Cir. See, e.g., United 1012, 1014 1014 n.2 See, e.g., United States States v. v. Norbury, Norbury, 492 492 F.3d F.3d 1012,
2007) to establish a prior conviction was was "irrelevant" “irrelevant” to legal 2007) (burden (burden to establish a prior conviction to legal question “whether a a dismissed conviction qualifies as a a prior question "whether dismissed conviction qualifies as prior conviction”); United 310 F.3d 1208, 1215 1215 (9th (9th Cir. conviction"); United States States v. v. Seschillie, Seschillie, 310 F.3d 1208, Cir. 2002) citation omitted) analysis is is a 2002) (internal (internal citation omitted) (“Because ("Because harmless harmless error error analysis a purely legal question fact-finding, we we purely legal question which which lies lies outside outside the the realm realm of of fact-finding, ordinarily with burdens burdens of and presumptions….”); ordinarily dispense dispense with of proof proof and presumptions...."); 91, 114 (2011) (Breyer, (Breyer, J., Microsoft P’ship, 564 114 (2011) J., Microsoft Corp. Corp. v. v. i4i i4i Ltd. Ltd. P'ship, 564 U.S. U.S. 91, concurring) (it is concurring) (it is "worth “worth emphasizing emphasizing that that in in this this area area of of law law as as in in
others standard of of proof applies to fact and and others the the evidentiary evidentiary standard proof applies to questions questions of of fact not not to to questions questions of of law”). law"). In determining determining whether In whether a a conviction as a conviction qualifies qualifies as a generic generic offense, offense,
a court applies applies Moncrieffe’s legal presumption to a a finite finite record—the a court Moncrieffe's legal presumption to record—the statute a limited limited set conviction. See statute and and a set of of documents documents in in the the record record of of conviction. See
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Descamps, 133 S. at 2283-84 (citing Taylor Descamps, 133 S. Ct. Ct. at 2283-84 (citing Taylor v. v. United United States, States, 495 495 U.S. U.S. 575, 575, 600, 600, 602 602 (1990), (1990), and and Shepard Shepard v. v. United United States, States, 544 544 U.S. U.S. 13, 13, 17, 26 That is is not the type the allocation 17, 26 (2005)). (2005)). That not the type of of determination determination that that the allocation of a burden burden can can affect. affect. Indeed, bears the burden of a Indeed, while while the the government government bears the burden of as to and the the noncitizen bears it for cancellation cancellation of proof proof as to removal removal and noncitizen bears it for purposes, burden is is relevant with respect purposes, neither neither burden relevant with respect to to this this legal legal question. question. That is why why "Moncrieffe “Moncrieffe explicitly that its its 'analysis ‘analysis is That is explicitly stated stated that is the the same same in in both contexts"' contexts’” when it comes comes to a prior examination of of a prior criminal criminal both when it to the the examination conviction. Sauceda, 819 F.3d at 534 133 S. at conviction. Sauceda, 819 F.3d at 534 (quoting (quoting Moncrieffe, Moncrieffe, 133 S. Ct. Ct. at 1685 n.4). that "the “the term ‘convicted of’ 1685 n.4). Moncrieffe Moncrieffe explained explained that term 'convicted of' has has a a formal, formal, legal legal definition by the definition governed governed by the [least-acts-criminalized [least-acts-criminalized
presumption], and that is uniform presumption], and that definition definition is uniform as as between between the the removal removal of the the Immigration Immigration and and and cancellation of of removal and cancellation removal provisions provisions of Nationality Act (INA')." Id. Id. (quoting Nationality Act (‘INA’).” 133 S. at 1685). (quoting Moncrieffe, Moncrieffe, 133 S. Ct. Ct. at 1685).
Moncrieffe itself illustrated illustrated this Moncrieffe Moncrieffe itself this point. point. Because Because Mr. Mr. Moncrieffe was deportable a controlled-substances controlled-substances offender, offender, he was deportable as as a he was was removable removable whether or an aggravated aggravated felony; whether or not not his his conviction conviction was was an felony; treating treating his his conviction as aggravated felony felony mattered conviction as an an aggravated mattered only only because because he he could could not not then from removal. 133 S. then apply apply for for discretionary discretionary relief relief from removal. Moncrieffe, Moncrieffe, 133 S. Ct. Ct.
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at 1682, 1692. 1692. The The Supreme “having been been found at 1682, Supreme Court Court held held that that "having found not not to to seek be an an aggravated felon” for for removal “the noncitizen be aggravated felon" removal purposes, purposes, "the noncitizen may may seek relief from removal such such as as asylum relief from removal cancellation of asylum or or cancellation of removal, removal, assuming assuming
he satisfies the other eligibility criteria.” Id. at 1692 1692 (emphasis added). he satisfies the other eligibility criteria." Id. at (emphasis added). The cited the criteria for for cancellation The Court cancellation in in Court then then cited the eligibility eligibility criteria 8 U.S.C. §§ 1229b(a)(1)-(2), 1229b(a)(1)-(2), but but not “not … convicted of 8 U.S.C. §§ not the the "not ... convicted of any any ‘aggravated felony’” criterion criterion in in § § 1229b(a)(3). 1229b(a)(3). Id. 1696. The The Court `aggravated felony"' Id. at at 1696. Court recognized conviction again recognized that that analyzing analyzing the the conviction again for for cancellation cancellation purposes purposes would be be redundant; “[the] analysis analysis is in both both contexts," contexts,” would redundant; "[the] is the the same same in notwithstanding the different burdens. Id. 1685 n.4. notwithstanding the different burdens. Id. at at 1685 n.4. Young’s Young's contrary contrary rule is thus inconsistent with with Moncrieffe. rule is thus inconsistent Moncrieffe.33
2. “conviction” a 2. Giving Giving "conviction" a single single meaning meaning under under the the INA INA not not only only is is proper U.S. 115, 115, proper statutory statutory interpretation, interpretation, see see Brown Brown v. v. Gardner, Gardner, 513 513 U.S. 118 (1994), but also also avoids illogic of the 118 (1994), but avoids the the illogic of Young’s Young's rule: rule: Under Under Young, Young, the
In Almanza-Arenas v. a panel issued an an opinion, In Almanza-Arenas v. Holder, Holder, a panel of of this this Court Court issued opinion, after finding its its earlier in Young “irreconcilable after Moncrieffe, Moncrieffe, finding earlier decision decision in Young "irreconcilable with Moncrieffe.” 1184, 1193 2014). This This Court with Moncrieffe." 771 771 F.3d F.3d 1184, 1193 (9th (9th Cir. Cir. 2014). Court vacated the opinion and banc, subsequently subsequently vacated the panel panel opinion and granted granted rehearing rehearing en en banc, issuing a the burden burden of issuing a decision decision that that had had no no occasion occasion to to reach reach the of proof proof question because it it resolved case in favor of the question presented presented here here because resolved the the case in favor of the petitioner an alternative alternative ground. Almanza-Arenas, 815 815 F.3d at petitioner on on an ground. See See Almanza-Arenas, F.3d at 474 474 n.6. n.6. 3 3
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same ambiguous conviction conviction would count as as an an aggravated aggravated felony felony for same ambiguous would not not count for deportation count as an aggravated aggravated felony felony for for deportation purposes purposes and and then then would would count as an purposes barring discretionary purposes of of barring discretionary relief. relief. Congress Congress could could not not have have intended so so erratic when it it used the same same term both the intended erratic a a result result when used the term in in both the INA’s and relief INA's deportation deportation and relief provisions. provisions. Moncrieffe that when when the the record Moncrieffe thus thus undercuts undercuts Young’s Young's reasoning reasoning that record is inconclusive, inconclusive, "the “the evidence conviction is is evidence about about the the nature nature of of the the conviction is in in equipoise,” such that that the bearing the burden must equipoise," such the party party bearing the burden must lose. lose. Young, Young, 697 at 989. As Moncrieffe when the 697 F.3d F.3d at 989. As Moncrieffe recognizes, recognizes, when the record record does does not not establish conviction for for a in establish a a conviction a generic generic offense, offense, the the evidence evidence is is not not in equipoise; there is is not, chance that conviction equipoise; there not, say, say, a a 40% 40% or or 60% 60% chance that the the conviction was for for a is zero chance: Because conviction was a generic generic offense. offense. There There is zero chance: Because the the conviction offense, fails to the disqualifying fails to necessarily necessarily establish establish the the elements elements of of the disqualifying offense,
the conviction does as a law. The the conviction does not not qualify qualify as a matter matter of of law. The allocation allocation of of the the burden is is irrelevant. irrelevant. Because compels precisely burden Because Young Young compels precisely the the opposite opposite result, it is is "clearly “clearly irreconcilable" irreconcilable” with with Moncrieffe. result, it Moncrieffe. 3. 3. None None of of this this nullifies nullifies the the general general rule rule that that when when a a noncitizen noncitizen applies for relief from removal “the evidence applies for relief from removal and and "the evidence indicates indicates that that one one or or more the grounds for mandatory application for for relief of the the application relief more of of the grounds for mandatory denial denial of
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may the [noncitizen] burden of by a may apply, apply, the [noncitizen] shall shall have have the the burden of proving proving by a preponderance apply.” preponderance of of the the evidence evidence that that such such grounds grounds do do not not apply." 8 C.F.R. § 1240.8(d); 1240.8(d); see see also U.S.C. § § 1229a(c)(4). 1229a(c)(4). The The statutory statutory and 8 C.F.R. § also 8 8 U.S.C. and regulatory burden of of proof are provisions regulatory burden proof sections sections are provisions of of general general applicability carry force force in in the contexts where bar to applicability that that carry the numerous numerous contexts where a a bar to relief instance, as as to cancellation of relief involves involves a a factual factual question. question. For For instance, to cancellation of removal, a noncitizen is relief if if he he "engaged" in, rather rather removal, a noncitizen is barred barred from from relief “engaged” in,
than was convicted convicted of, activity, including than was of, numerous numerous types types of of unlawful unlawful activity, including criminal criminal activity activity that that endangers endangers public public safety safety or or national national security, security, or terrorist under 8 U.S.C. § 1227(a)(4)(A)(ii), 1227(a)(4)(A)(ii), or 8 U.S.C. § terrorist activities activities under
8 U.S.C. §§ 1182(a)(3), 1182(a)(3), 1227(a)(4)(B). 1227(a)(4)(B). See 8 U.S.C. § 1229b(c); 1229b(c); see 8 U.S.C. §§ See 8 U.S.C. § see also also 8 U.S.C. § 1158(b)(2)(A) 1158(b)(2)(A) (for the noncitizen noncitizen was was firmly firmly 8 U.S.C. § (for asylum, asylum, whether whether the resettled in another another country country prior arriving in in the United States, resettled in prior to to arriving the United States, or or there are reasonable believe he is a a danger to the the security security of there are reasonable grounds grounds to to believe he is danger to of the for believing believing he “committed” a the United United States, States, or or serious serious reasons reasons for he "committed" a serious 8 U.S.C. § 1255(c) serious political political crime); crime); 8 U.S.C. § 1255(c) (for (for adjustment adjustment of of status, status,
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whether the was employed while unauthorized, whether the noncitizen noncitizen was employed while unauthorized, or or continues continues prior to to filing filing application). application).44 in or or accepts in accepts unauthorized unauthorized employment employment prior
Under Under the the statute statute and and regulation, regulation, the the noncitizen noncitizen will will also also bear bear the the burden of of proving showing entitlement cancellation, like burden proving facts facts showing entitlement to to cancellation, like years years of in the country and and hardship e.g., of presence presence in the country hardship to to family family members. members. See, See, e.g., purely legal eligibility Sauceda, n.3. But as to to a a purely legal eligibility Sauceda, 819 819 F.3d F.3d at at 530 530 n.3. But as
criterion, like like the at issue issue here, an evidentiary burden of criterion, the one one at here, an evidentiary burden of proof proof has has no no effect effect either either way. way. This does does not not mean This immigration judges mean that that immigration judges must must grant grant the the
applications individuals requesting forms of applications of of individuals requesting these these forms of relief. relief. It It would would simply avoid simply avoid a a mandatory bar in in cases cases where where the mandatory bar the record record does does not not
necessarily conviction. There is no no need need necessarily establish establish a a prior prior disqualifying disqualifying conviction. There is to the worst about a a conviction conviction at to presume presume the worst about at the the threshold threshold stage stage of of determining whether noncitizen is is eligible eligible to determining whether a a noncitizen to merely merely request request relief— relief—
the where the categorical approach approach applies—because agency the stage stage where the categorical applies—because the the agency may offense, along along with with all may always always consider consider the the actual actual facts facts of of any any offense, all other other
In addition, burdens burdens of of proof be relevant when a a prior In addition, proof may may be relevant when prior disqualifying conviction is circumstance-specific disqualifying conviction is analyzed analyzed under under a a circumstance-specific inquiry, as in Nijhawan (2009). That inquiry, as in Nijhawan v. v. Holder, Holder, 557 557 U.S. U.S. 29, 29, 36 36 (2009). That is is not not the case here. the case here. 4 4
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equities, where the equities, at at the the discretionary discretionary phase, phase, where the categorical categorical approach approach discretionary, "any does “any does not not apply. apply. Because Because any any ultimate ultimate relief relief is is discretionary,
practical borders … practical effect effect on on policing policing our our Nation’s Nation's borders ... is is a a limited limited one.” one." Moncrieffe, 133 S. at 1692 1692 (quoting Moncrieffe, 133 S. Ct. Ct. at (quoting Carachuri-Rosendo Carachuri-Rosendo v. v. Holder, Holder, 560 560 U.S. U.S. 563, 563, 581 581 (2010)). (2010)). C. C.
Contrary to Young, Moncrieffe concluded that Contrary to Young, Moncrieffe concluded that noncitizens should should not noncitizens be penalized penalized for the not be for the unavailability unavailability of of conviction conviction records records whose whose existence existence is beyond noncitizens’ is beyond noncitizens' control. control.
Moncrieffe also rejected a further further premise Moncrieffe also rejected a premise of of Young. Young. Moncrieffe Moncrieffe considered what what records created as considered records are are necessarily necessarily created as part part of of an an underlying criminal proceeding when deciding the the immigration immigration underlying criminal proceeding when deciding
consequences of 133 S. 1692. In consequences of a a conviction. conviction. See See Moncrieffe, Moncrieffe, 133 S. Ct. Ct. at at 1692. In contrast to concluded that availability of of records contrast to Moncrieffe, Moncrieffe, Young Young concluded that the the availability records is irrelevant, irrelevant, see see 697 at 989, and therefore imposed an impossible is 697 F.3d F.3d at 989, and therefore imposed an impossible burden on on noncitizens: criminal records burden noncitizens: to to obtain obtain criminal records that that prove prove a a negative—that they were were not convicted of a disqualifying offense—even negative—that they not convicted of a disqualifying offense—even when such when such records records may may not not exist. exist. 1. that "[t]he “[t]he categorical categorical approach approach was was 1. Moncrieffe Moncrieffe reasoned reasoned that designed avoid” precisely “potential unfairness” which unfairness" in in which designed to to avoid" precisely the the sort sort of of "potential “two noncitizens, ‘convicted of’ "two noncitizens, each each 'convicted of the the same same offense, offense, might might obtain obtain 21 21
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different aggravated felony felony determinations on what evidence different aggravated determinations depending depending on what evidence remains 133 S. at 1690 1690 (emphasis (emphasis added) remains available available ….” ...." 133 S. Ct. Ct. at added) (citing (citing Taylor, at 601, and United ex rel. Taylor, 495 495 U.S. U.S. at 601, and United States States ex rel. Mylius Mylius v. v. Uhl, Uhl, 210 210 F. F. 860, 863 863 (2d 1914)); see generally Alina Alina Das, Immigration 860, (2d Cir. Cir. 1914)); see generally Das, The The Immigration Penalties of of Criminal Analysis in Penalties Criminal Convictions: Convictions: Resurrecting Resurrecting Categorical Categorical Analysis in Immigration L. Rev. 1669, 1688-1702 1688-1702 (2011). Immigration Law, Law, 86 86 N.Y.U. N.Y.U. L. Rev. 1669, (2011). This aspect of categorical approach important because, because, as This aspect of the the categorical approach is is important as Moncrieffe courts may Moncrieffe recognized, recognized, state state courts may not not regularly regularly record record which which portion a divisible formed the for a conviction. 133 133 portion of of a divisible statute statute formed the basis basis for a conviction. information S. at 1692. 1692. And And even if courts courts do S. Ct. Ct. at even if do happen happen to to record record such such information
in the the first first place, they may a practice in place, they may have have a practice of of destroying destroying records records for for old old or convictions, as as demonstrated or expunged expunged convictions, demonstrated by by state state court court recordkeeping recordkeeping practices within this this Circuit. practices within Circuit. For example, example, California California retains retains records For for misdemeanor records for misdemeanor offenses offenses
for five and for Even for five years, years, and for certain certain marijuana marijuana offenses, offenses, only only two two years. years.55 Even when records courts may impose additional as when records exist, exist, courts may impose additional requirements, requirements, such such as that criminal documents that requestors requestors name name with with specificity specificity the the exact exact criminal documents
5 5
Cal. Gov’t § 68152(c)(7), Cal. Gov't Code Code § 68152(c)(7), (8). (8). 22 22
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sought indictment, plea colloquy), include include case case numbers filing and filing sought (e.g., (e.g., indictment, plea colloquy), numbers and dates, and submit submit fees fees by by check.6 check.6 dates, and Individuals who face based on Individuals who face removal removal proceedings proceedings in in this this Circuit Circuit based on a conviction they better as a conviction they received received elsewhere elsewhere in in the the country country fare fare no no better as to to state 1980, 1985 1985 (2015) state records. records. See See Mellouli Mellouli v. v. Lynch, Lynch, 135 135 S. S. Ct. Ct. 1980, (2015) (immigration judge judge sitting sitting in in the (immigration the Eighth Eighth Circuit Circuit adjudicated adjudicated removal removal In Virginia, for example, example, proceedings involving a a Kansas conviction). In Virginia, for proceedings involving Kansas conviction).
the created for criminal adjudication in "[g] “[g]eneral the only only record record created for criminal adjudication in eneral district district courts” is “the executed arrest as by the courts" is "the executed warrant warrant of of arrest as executed executed by the trial trial Cir. 2010). 2010). North North judge.” 144, 146 146 (4th (4th Cir. judge." United United States States v. v. White, White, 606 606 F.3d F.3d 144,
Carolina courts do create a Carolina courts do not not create a transcript transcript or or a a recording recording of of misdemeanor misdemeanor proceedings. proceedings.?7 2. Young’s Young's holding 2. conclusive records holding that that a a noncitizen noncitizen must must find find conclusive records on noncitizens noncitizens in in places places significant, significant, often often insurmountable, insurmountable, burdens burdens on
See, e.g., e.g., Records California, See, Records Management Management Division, Division, Superior Superior Court Court of of California, San Mateo County, by Mail, Mail, San Mateo County, Request Request Copies Copies by http://tinyurl.com/RequestCopiesByMail; http://tinyurl.com/RequestCopiesByMail; Superior Superior Court Court of of California, California, Santa Santa Clara Clara County, County, Criminal Criminal Case Case Records, Records, http://tinyurl.com/CriminalCaseRecords. http://tinyurl.com/CriminalCaseRecords. 6 6
North Carolina Administrative Office the Courts, North North Carolina Administrative Office of of the Courts, The The North Carolina Judicial System 27-28 (2008 Carolina Judicial System 27-28 (2008 ed.), ed.), http://tinyurl.com/NCJudicialSystem. http://tinyurl.com/NCJudicialSystem. 7 7
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removal whom are 28% of whom removal proceedings, proceedings, 42% 42% of of whom are unrepresented, unrepresented,88 28% of whom are and 88% 88% of whom do speak English a native are detained, detained,99 and of whom do not not speak English as as a native 10 This language language and and require interpretation in in immigration immigration court. This would would require interpretation court.19
be particularly for detained face innumerable innumerable be particularly harsh harsh for detained noncitizens, noncitizens, who who face barriers to to requesting barriers requesting state state court court records records of of prior prior convictions, convictions, including including extremely limited access extremely limited access to to the the Internet, Internet, telephones, telephones, and and mail mail (such (such as as them from from sending sending or or receiving receiving “postcard-only” policies "postcard-only" policies that that prohibit prohibit them 11 See envelopes). See Moncrieffe, 133 S. at 1690 1690 (citing A. envelopes).11 Moncrieffe, 133 S. Ct. Ct. at (citing Robert Robert A.
Katzmann, Profession and of the Katzmann, The The Legal Legal Profession and the the Unmet Unmet Needs Needs of the Immigrant Immigrant Poor, 21 J. Legal Poor, 21 Geo. Geo. J. Legal Ethics Ethics 3, 3, 5-10 5-10 (2008), (2008), to to observe observe that that noncitizens, noncitizens,
See U.S. U.S. Department Justice, FY Yearbook F1, Fl, Fig. Fig. See Department of of Justice, FY 2015 2015 Statistics Statistics Yearbook 10, http://tinyurl.com/2015StatisticsYearbook 10, http://tinyurl.com/2015StatisticsYearbook (“EOIR ("EOIR Statistical Statistical Yearbook”). Yearbook"). 8 8
9 9
EOIR Statistical Yearbook, at at G1, Gl, Fig. Fig. 11. 11. EOIR Statistical Yearbook,
10 19
EOIR Statistical Yearbook, at at E1, EOIR El, Fig. Statistical Yearbook, Fig. 9. 9.
e.g., Amnesty Amnesty International, e.g., International, Jailed Jailed Without Without Justice: Justice: Immigration Immigration Detention Detention in in the the USA USA 35 35 (2009), (2009), http://tinyurl.com/JailedWithoutJustice; http://tinyurl.com/JailedWithoutJustice; National National Immigrant Immigrant Law Law Center, A Broken Center, A Broken System: System: Confidential Confidential Reports Reports Reveal Reveal Failures Failures in in U.S. U.S. Immigration 26-30 (2009), Immigration Detention Detention Centers Centers 26-30 (2009), http://tinyurl.com/ABrokenSystem. Prison Legal http://tinyurl.com/ABrokenSystem. See See also also Prison Legal News News v. v. Columbia 1068 (D. (lawsuit challenging challenging Or. 2013) 2013) (lawsuit Columbia Cty., Cty., 942 942 F. F. Supp. Supp. 2d 2d 1068 (D. Or. postcard-only in St. policy in Oregon); Prison Prison Policy postcard-only policy St. Helens, Helens, Oregon); Policy Initiative, Initiative, Return Postcard-Only Mail Policies in 2 (2013), (2013), Return to to Sender: Sender: Postcard-Only Mail Policies in Jail Jail 2 http://tinyurl.com/ReturnToSenderReport. http://tinyurl.com/ReturnToSenderReport.
11 See, See, 11
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especially who are “have little especially those those who are detained, detained, "have little ability ability to to collect collect evidence”). evidence"). for Young’s who are applying for Young's rule rule does does not not just just affect affect those those who are applying
cancellation of of removal; a broad-ranging broad-ranging and impact cancellation removal; it it has has a and devastating devastating impact in the the many contexts where convictions may limit noncitizens’ prior convictions may limit noncitizens' in many contexts where prior eligibility for relief from removal, lawful eligibility for relief from removal, lawful permanent permanent resident resident status, status, or or
naturalization. e.g., 8 8 U.S.C. § 1229b(a) 1229b(a) (cancellation naturalization. See, See, e.g., U.S.C. § (cancellation of of removal removal for permanent U.S.C. § § 1229b(b)(1) 1229b(b)(1) (cancellation for permanent residents); (cancellation of of residents); 8 8 U.S.C. removal for for non-permanent non-permanent residents); removal U.S.C. § § 1229b(b)(2) 1229b(b)(2) residents); 8 8 U.S.C. (cancellation of (cancellation for non-permanent who have been of removal removal for non-permanent residents residents who have been
battered); 8 8 U.S.C. § 1158(b)(2)(B)(i) 1158(b)(2)(B)(i) (aggravated bar to asylum); battered); U.S.C. § (aggravated felony felony bar to asylum); 8 U.S.C. § 1255(a) 1255(a) (adjustment for relatives permanent 8 U.S.C. § (adjustment of of status status for relatives of of permanent (h)(2)(B) residents citizens); 8 8 U.S.C. U.S.C. §§ §§ 1255(1)(1)(B), 1255(l)(1)(B), (h)(2)(B) residents and and U.S. U.S. citizens);
(adjustment victims and and juveniles (adjustment of of status status for for trafficking trafficking victims juveniles granted granted special immigrant juvenile 8 U.S.C. U.S.C. § § 1427(a)(3) 1427(a)(3) special immigrant juvenile status); status); 8 (naturalization). (naturalization). And And it it is is especially burden where where the especially unfair unfair to to impose impose such such a a burden the
noncitizen can present only a limited set noncitizen can present only a limited set of of documents—documents documents—documents whose creation creation and beyond the control. whose and maintenance maintenance are are beyond the noncitizen’s noncitizen's control.
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Petitioner could not “submitted testimony “the Petitioner could not have have "submitted testimony from from his his lawyer” lawyer" or or "the judge who accepted accepted his to ascertain ascertain what what offense was charged charged and and judge who his plea plea to offense was pleaded in the the state state court." court.” Sauceda, 819 F.3d at 532. pleaded to to in Sauceda, 819 F.3d at 532. Indeed, Indeed, Moncrieffe “squarely rejected” “minitrials.” Id. at 533 Moncrieffe "squarely rejected" such such "minitrials." Id. at 533 (quoting (quoting Moncrieffe, 133 S. at 1690).12 1690).12 Moncrieffe, 133 S. Ct. Ct. at Young is irreconcilable irreconcilable with with Moncrieffe’s which Young is Moncrieffe's reasoning, reasoning, which recognizes state court court recordkeeping recognizes that that the the accident accident of of state recordkeeping should should not not determine the categorical categorical analysis. analysis. determine the the outcome outcome under under the D. D.
Reaffirming Young Reaffirming the Young would would create create a a circuit circuit split split on on the meaning meaning of Moncrieffe. of Moncrieffe.
Moreover, adhering would create create a a conflict conflict among among the Moreover, adhering to to Young Young would the courts of appeals. Before and Third courts of appeals. Before Moncrieffe, Moncrieffe, the the Second Second and Third Circuits Circuits had had adopted consistent with with the the First adopted positions positions consistent First Circuit’s Circuit's in in Sauceda. Sauceda. Both Both
For nearly a century, been the For nearly a century, it it has has been the rule rule in in immigration immigration law law that that when analyzing conviction, "neither “neither the immigration officials when analyzing a a prior prior conviction, the immigration officials nor court reviewing nor the the court reviewing their their decision decision may may go go outside outside the the record record of of conviction”—i.e., "the “the charge charge (indictment), verdict, and conviction"—i.e., (indictment), plea, plea, verdict, and sentence.” sentence." United ex rel. 1933); United States States ex rel. Zaffarano Zaffarano v. v. Corsi, Corsi, 63 63 F.2d F.2d 757, 757, 759 759 (2d (2d Cir. Cir. 1933); see also Sauceda, 819 F.3d at 533 (citation omitted) (“The see also Sauceda, 819 F.3d at 533 n.13 n.13 (citation omitted) ("The conclusion reached in Moncrieffe was not a novel one. Indeed, conclusion reached in Moncrieffe was not a novel one. Indeed, the the Court’s favorable citation citation to ex rel. 210 F. Court's favorable to United United States States ex rel. Mylius Mylius v. v. Uhl, Uhl, 210 F. 860, 862-63 862-63 (2d belies any for notion that that the the justifications justifications for 860, (2d Cir.1914), Cir.1914), belies any notion restricting courts to conviction in in the immigration context context restricting courts to the the record record of of conviction the immigration are vintage.”). are of of recent recent vintage."). 12 12
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held categorical or categorical approach, held that, that, under under the the categorical or modified modified categorical approach, a a merely ambiguous merely conviction does ambiguous record record of of a a prior prior conviction does not not suffice suffice to to preclude eligibility eligibility for preclude for relief Att’y Gen., relief from from removal. removal. See See Thomas Thomas v. v. Att'y Gen.,
625 134, 148 148 (3d added) (“In of 625 F.3d F.3d 134, 2010) (emphasis (emphasis added) ("In the the absence absence of (3d Cir. Cir. 2010) judicial a finding judicial records records to to establish establish such such a finding [that [that would would count count as as drug drug trafficking],” “conclude[d] that trafficking]," the the court court "conclude[d] that Thomas’s Thomas's misdemeanor misdemeanor convictions … trafficking crimes," crimes,” and could convictions ... were were not not drug drug trafficking and thus thus Thomas Thomas could apply cancellation); Martinez 113, 122 122 (2d Mukasey, 551 551 F.3d F.3d 113, (2d Cir. Cir. apply for for cancellation); Martinez v. v. Mukasey, 2008) that "[a]lthough “[a]lthough an alien must been 2008) (holding (holding that an alien must show show that that he he has has not not been convicted of an aggravated aggravated felony, can do so merely by showing convicted of an felony, he he can do so merely by showing that that which requires requires simply simply he been convicted convicted of of such such a crime,” which he has has not not been a crime,"
“showing that that the the minimum conduct for for which which he convicted was was not "showing minimum conduct he was was convicted not an aggravated felony," felony,” and would "fl[y] “fl[y] in in an aggravated and noting noting that that to to hold hold otherwise otherwise would the face of categorical approach"); approach”); see see also of the face of the the categorical also Scarlett Scarlett v. v. U.S. U.S. Dep’t Dep't of Homeland 311 F. App’x 385, Homeland Sec., Sec., 311 F. App'x 385, 386-87 386-87 (2d (2d Cir. Cir. 2009) 2009) (citing (citing Martinez, Martinez, 551 at 121-22) 121-22) (considering “an alien's alien’s burden burden to 551 F.3d F.3d at (considering "an to prove prove his his eligibility for cancellation relief,” relief," applying applying the eligibility for cancellation “modified-categorical the "modified-categorical
approach” a "divisible" “divisible” statute, because the approach" to to a statute, and and concluding concluding that that because the
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“record of of conviction" conviction” did conclusively establish it "record did not not conclusively establish a a federal federal offense, offense, it noncitizen ineligible). did ineligible). did not not render render the the noncitizen
That view is with Moncrieffe, the Third Third Circuit That view is consistent consistent with Moncrieffe, and and the Circuit has has continued applying applying its its rule in the the time Att’y Gen., continued rule in time since. since. See See Johnson Johnson v. v. Att'y Gen., 605 App’x 138, 138, 141-42 141-42 (3d (3d Cir. 2015) (continuing to apply apply this Cir. 2015) (continuing to this rule rule 605 F. F. App'x post-Moncrieffe); Att’y Gen., 14-4570, 2016 post-Moncrieffe); see see also also Chang-Cruz Chang-Cruz v. v. Att'y Gen., No. No. 14-4570, 2016 WL at *4 *4 n.7 Aug. 24, 2016) (citing 133 WL 4446063, 4446063, at n.7 (3d (3d Cir. Cir. Aug. 24, 2016) (citing Moncrieffe, Moncrieffe, 133 S. at 1685 1685 n.4) (holding that that even though “[a]n S. Ct. Ct. at n.4) (holding even though lain alien alien has has the the burden burden of removal removal …, ..., if the of showing that that he is eligible for cancellation if the of showing he is eligible for cancellation of
statute was convicted convicted is broader than statute under under which which he he was is broader than the the federal federal analogue, cannot conclude conclude that convicted of an analogue, then then we we cannot that he he was was convicted of an aggravated felony”). aggravated felony"). Like this Court, the Fourth and Tenth Like this Court, the Fourth and Tenth Circuits Circuits reached reached the the opposite conclusion before before Moncrieffe. opposite conclusion Moncrieffe. See See Salem Salem v. v. Holder, Holder, 647 647 F.3d F.3d 111 (4th 1288 (10th 111 (4th Cir. Cir. 2011); 2011); Garcia Garcia v. v. Holder, Holder, 584 584 F.3d F.3d 1288 (10th Cir. Cir. 2009). 2009). But whether to But neither neither has has decided decided whether to adhere adhere its its position position since since 13 So, Moncrieffe. So, a a decision create a a postMoncrieffe.13 decision reaffirming reaffirming Young Young here here would would create post-
The Third, Third, Fifth, The Fifth, and and Seventh Seventh Circuits Circuits have have issued issued precedential precedential decisions in the the burden burden of of proof context, but but none decisions discussing discussing Moncrieffe Moncrieffe in proof context, none of ambiguous record conviction under of these these decisions decisions holds holds that that an an ambiguous record of of conviction under 13 13
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Moncrieffe circuit split This Court should not Moncrieffe circuit split with with Sauceda. Sauceda. This Court should not take take that that path. path. E. E.
The The evaluation evaluation of of ambiguous ambiguous convictions convictions also also requires distinguishing requires between the the applicable distinguishing between applicable of proof. proof. burden of burden of burden of production production and and burden
The immigration judge case held The immigration judge in in this this case held that that Petitioner Petitioner had had not not met burden under the nature conviction in met his his burden under Young Young to to prove prove the nature of of his his conviction in part because Petitioner a complete complete set set of part because Petitioner did did not not obtain obtain a of records records of of his his conviction. Administrative Administrative Record conclusion conviction. Record (AR) (AR) 23-26. 23-26. That That conclusion distinction exacerbated the agency's agency’s error by misunderstanding the distinction exacerbated the error by misunderstanding the
between a a burden burden of a burden burden of and the the allocation between of proof proof and and a of production production and allocation of for obtaining conviction records. of responsibility responsibility for obtaining conviction records. Noncitizens bear no initial burden burden to of a a prior Noncitizens bear no initial to produce produce the the record record of prior conviction. The applicable regulation “If the evidence indicates conviction. The applicable regulation states, states, "If the evidence indicates that of the the grounds that one one or or more more of grounds for for mandatory mandatory denial denial of of the the application application
the categorical approach approach disqualifies a noncitizen noncitizen from from relief relief the modified modified categorical disqualifies a from removal. 819 F.3d from removal. Le Le v. v. Lynch, Lynch, 819 F.3d 98, 98, 107 107 n.5 n.5 (5th (5th Cir. Cir. 2016) 2016) (reserving the question because the categorical approach (reserving the question presented presented here here because the categorical approach did did not not apply); apply); Sanchez Sanchez v. v. Holder, Holder, 757 757 F.3d F.3d 712, 712, 720 720 n.6 n.6 (7th (7th Cir. Cir. 2014) 2014) (addressing the issue issue only only in in dicta finding that categorical (addressing the dicta after after finding that the the categorical approach apply); Syblis Att’y Gen., approach did did not not apply); Syblis v. v. Att'y Gen., 763 763 F.3d F.3d 348, 348, 357 357 n.12 n.12 (3d (3d Cir. 2014) (concluding approach did apply and Cir. 2014) (concluding that that the the categorical categorical approach did not not apply and thus its earlier in Thomas, thus distinguishing distinguishing its earlier decision decision in Thomas, discussed discussed supra). supra). 29 29
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for relief alien shall shall have burden of by a a for relief may may apply, apply, the the alien have the the burden of proving proving by preponderance apply.” preponderance of of the the evidence evidence that that such such grounds grounds do do not not apply." of 8 C.F.R. § 1240.8(d) 1240.8(d) (emphasis (emphasis added). Thus, before before any any "burden “burden of 8 C.F.R. § added). Thus,
proof proof … ... shift[s] shift[s] to to the the [noncitizen] [noncitizen] to to show” show" that that his his conviction conviction is is not not disqualifying, government must “satisf[y] its its burden disqualifying, the the government must first first "satisf[y] burden of of establishing establishing that that the the evidence evidence ‘indicate[s]’ `indicate[s]' that that [this] [this] bar bar applie[s].” applie[s]." In In re S-K-, S-K-, 23 23 I. re 2006); see of A-G-G-, A-G-G-, I. & & N. N. Dec. Dec. 936, 936, 939 939 (BIA (BIA 2006); see also also Matter Matter of
25 “initial 25 I. I. & & N. N. Dec. Dec. 486, 486, 501 501 (BIA (BIA 2011) 2011) (describing (describing the the government’s government's "initial burden” to to "secure “secure and and produce burden" produce direct direct evidence”). evidence"). The BIA and The BIA and the courts of appeals have interpreted the the "evidence “evidence the courts of appeals have interpreted 14 and indicates” language language in in both both the indicates" the firm-resettlement firm-resettlement14 and persecutor-bar persecutor-bar
contexts (where 8 C.F.R. § 1240.8(d) 1240.8(d) also also applies) contexts (where 8 C.F.R. § applies) to to mean mean that that the the noncitizen’s burden is is not noncitizen's burden not triggered triggered unless unless the the government government provides provides prima “indicating” that bar applies. A-G-G, 25 prima facie facie evidence evidence "indicating" that a a bar applies. A-G-G, 25 I. I. & & N. N. Dec. at 501; see also also Matter of Acosta, Acosta, 19 19 I. (BIA & N. N. Dec. Dec. 211, 211, 219 219 n.4 n.4 (BIA Dec. at 501; see Matter of I. & 1985), overruled overruled on on other other grounds grounds by of Mogharrabi, 19 I. 1985), by Matter Matter of Mogharrabi, 19 I. & & N. N. Dec. the persecutor bar to Dec. 439 439 (BIA (BIA 1987) 1987) (clarifying (clarifying that that the persecutor bar to asylum asylum may may
A noncitizen is ineligible for asylum asylum if “was firmly in A noncitizen is ineligible for if she she "was firmly resettled resettled in another country country prior to arriving arriving in in the another prior to the United United States.” States." 8 U.S.C. § 1158(b)(2)(A)(vi). 1158(b)(2)(A)(vi). 8 U.S.C. §
14 14
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apply “only if if the apply "only the evidence evidence raises raises that that issue”); issue"); Budiono Budiono v. v. Lynch, Lynch, F.3d —, No. 12-71804, __ F.3d __, No. 12-71804, 2016 at *6 *6 (9th 2016 WL WL 5112030, 5112030, at (9th Cir. Cir. Sept. Sept. 21, 21, —
2016) 1240.8(d) "assume[s] “assume[s] that the record will contain least 2016) (Section (Section 1240.8(d) that the record will contain at at least some indicating that a bar bar applies applies before before the applicant has some evidence evidence indicating that a the applicant has the the burden to to disprove App’x 731, (9th Cir. burden disprove it.”); it."); Criollo Criollo v. v. Lynch, Lynch, 647 647 F. F. App'x 731, 732 732 (9th Cir. 2016) (shifting (shifting the 2016) the burden burden to bar to the the noncitizen noncitizen to to prove prove the the persecutor persecutor bar
to asylum did apply only only once “evidence indicate[d]" indicate[d]” that that he to asylum did not not apply once the the "evidence he was was involved in opinion). Thus, Thus, for for involved in persecution persecution on on account account of of political political opinion). example, if example, if the indicating the the government government submits submits evidence evidence indicating the possibility possibility of firm resettlement—which "may of firm resettlement—which “may include include evidence evidence of of refugee refugee status, status, a a
passport, passport, a a travel travel document, document, or or other other evidence evidence indicative indicative of of permanent permanent residence,” A-G-G, 25 25 I. at 501-02—the residence," A-G-G, I. & & N. N. Dec. Dec. at 501-02—the noncitizen noncitizen must must then then prove (to a a 51% certainty) that in prove (to 51% certainty) that she she was was not not actually actually firmly firmly resettled resettled in that country. See __, No. 15-1735, that country. See also also Munyakazi Munyakazi v. v. Lynch, Lynch, __ F.3d F.3d —, No. 15-1735, 2016 at *7 *7 (4th (4th Cir. Jul. 11, 11, 2016) 2016) (once DHS submits submits 2016 WL WL 3670075, 3670075, at Cir. Jul. (once DHS evidence indicating the bar applies, “the burden burden shifts" shifts” to evidence indicating the persecutor persecutor bar applies, "the to the “show that is not the noncitizen noncitizen to to "show that he he is not subject subject to to the the persecutor persecutor bar”). bar"). In context of of an an ambiguous ambiguous record of conviction, conviction, however, In the the context record of however, the the government cannot meet its initial initial showing showing under § 1240.8(d) 1240.8(d) until it until it government cannot meet its under §
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produces a record conviction indicating produces a record of of conviction indicating that that the the noncitizen noncitizen was was convicted under a disqualifying of the the state state statute, and not convicted under a disqualifying prong prong of statute, and not a a non-disqualifying one. non-disqualifying one. This This is because the is because the modified modified categorical categorical rule rule
asks a binary binary legal legal question: conviction asks a question: Is Is Petitioner’s Petitioner's prior prior conviction “necessarily” an an aggravated aggravated felony felony or “evidence” can "necessarily" or not? not? The The "evidence" can only only “indicate” that is an an aggravated "indicate" that the the prior prior conviction conviction is aggravated felony felony if if it it necessarily it is. is. See supra §§ A. A. Only a record necessarily demonstrates demonstrates that that it See supra Only a record of of conviction that that succeeds succeeds in conviction in rebutting rebutting the the least-acts-criminalized least-acts-criminalized disqualifying. The The government government presumption would render a conviction conviction disqualifying. presumption would render a
must therefore offer “evidence indicat[ing]" indicat[ing]” that must therefore offer "evidence that such such a a record record actually actually exists. 8 C.F.R. § 1240.8(d). 1240.8(d). Accordingly, Accordingly, the the First exists. See See 8 C.F.R. § First Circuit Circuit has has held, held, “Where … broadly (i.e., "Where ... the the underlying underlying statute statute sweeps sweeps more more broadly (i.e., encompasses crimes that that are are not encompasses crimes not necessarily necessarily [disqualifying [disqualifying offenses] offenses] under ‘the government government ... ... must from the under the the INA), INA), 'the must demonstrate[] demonstrate0 … ... from the record conviction[] that constitutes a record of of conviction[] that the the putative putative predicate predicate offense offense constitutes a crime designated in the for that offense] in the INA’” INA"' for that crime designated as as [a [a disqualifying disqualifying offense] offense to bar bar a a noncitizen from seeking cancellation of offense to noncitizen from seeking cancellation of removal. removal. Berhe Berhe
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v. 85 (1st (1st Cir. (emphasis added) added) (internal (internal v. Gonzales, Gonzales, 464 464 F.3d F.3d 74, 74, 85 Cir. 2006) 2006) (emphasis citation omitted). citation omitted). The “preponderance of of the the evidence” The "preponderance evidence" standard standard thus thus does does not not apply apply to the purely “legal question,” 135 S. 1987, of whether a a to the purely "legal question," Mellouli, Mellouli, 135 S. Ct. Ct. at at 1987, of whether predicate constitutes a conviction under predicate offense offense constitutes a disqualifying disqualifying conviction under the the categorical and supra §§ B. this categorical and modified modified categorical categorical approach. approach. See See supra B. But But this does irrelevant the burden under does not not render render irrelevant the noncitizen’s noncitizen's burden under the the regulation. regulation. To the contrary, contrary, in cases, the attempt to To the in some some cases, the noncitizen noncitizen might might attempt to disprove disprove the validity or accuracy of government has the validity or accuracy of the the Shepard Shepard documents documents the the government has produced, for example, produced, for example, by by establishing establishing that that the the conviction conviction has has since since been vacated vacated or or that the indictment indictment had been amended been that the had been amended or or superseded superseded prior e.g., Griffiths prior to to judgment. judgment. See, See, e.g., Griffiths v. v. INS, INS, 243 243 F.3d F.3d 45, 45, 48 48 (1st (1st Cir. Cir. 2001). The The noncitizen 2001). bear the burden of that type noncitizen would would bear the burden of making making that type of of
factual challenge. challenge. See, e.g., Esparza-Recendez App’x factual See, e.g., Esparza-Recendez v. v. Holder, Holder, 526 526 F. F. App'x 886, 891-92 891-92 (10th lack of of clarity order 886, (10th Cir. Cir. 2013) 2013) (“[T]he ("[T]he lack clarity in in the the Utah Utah order [reducing conviction from from a a felony felony to class B [reducing his his conviction to a a class B misdemeanor] misdemeanor] facie demonstrates satisfy that burden.”). The demonstrates he he failed failed to to satisfy that burden."). The prima prima facie
showing by § § 1240.8(d) 1240.8(d) also also applies applies with with full in the showing required required by full force force in the numerous bars to factual questions. numerous contexts contexts of of other other bars to relief relief that that raise raise factual questions.
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See (identifying contexts contexts where § 1240.8(d) 1240.8(d) See supra supra § §B B (identifying where application application of of § requires factual questions). requires resolution resolution of of factual questions). A-G-G- and and the the appellate appellate decisions it also A-G-Gdecisions applying applying it also accord accord with with the the statutorily-defined statutorily-defined structure structure of of removal removal proceedings, proceedings, which which occur occur in in two two phases. cases involving involving prior convictions, the issue in in the phases. In In cases prior convictions, the issue the first first phase phase is is typically whether a a noncitizen based on conviction. typically whether noncitizen is is removable removable based on the the conviction.
In who are are found found removable In the the second second phase, phase, noncitizens noncitizens who removable present present their their case for for relief, cancellation of asylum. It case relief, such such as as cancellation of removal removal or or asylum. It makes makes sense that by by this the immigration immigration regulations sense that this phase, phase, the regulations assume assume that that the the government will have already produced criminal records as "evidence “evidence government will have already produced criminal records as indicat[ing]" indicat[ing]” that a noncitizen noncitizen is is subject a disqualifying conviction. that a subject to to a disqualifying conviction.
See 8 C.F.R. § 1240.8(d). 1240.8(d). When the record conviction is is ambiguous See 8 C.F.R. § When the record of of conviction ambiguous and based on conviction, the and does does not not establish establish removability removability based on a a prior prior conviction, the noncitizen from from eligibility eligibility for relief conviction also bar the for relief conviction also should should not not bar the noncitizen
from removal. 133 S. at 1692 1692 (if from removal. See See Moncrieffe, Moncrieffe, 133 S. Ct. Ct. at (if the the government government fails to burden to show removability based on a disqualifying fails to meet meet its its burden to show removability based on a disqualifying removal … ... assuming assuming he he conviction, "the “the noncitizen from removal conviction, noncitizen may may seek seek relief relief from
satisfies criteria”). Although Although the is not satisfies the the other other eligibility eligibility criteria"). the government government is not required to charge charge a a conviction conviction as as a required to a ground ground of of removability removability to to raise raise the the
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conviction as bar to if the and regulations conviction as a a bar to eligibility eligibility for for relief, relief, if the statute statute and regulations (contrary were read the burden burden of were read to to place place the of production production on on the the noncitizen noncitizen (contrary
to 8 C.F.R. § 1240.8(d)) 1240.8(d)) whenever whenever the chooses not not to charge to 8 C.F.R. § the government government chooses to charge a conviction at would arbitrarily arbitrarily a conviction at the the removability removability stage, stage, relief relief eligibility eligibility would “rest on of an an immigration immigration official’s official's charging charging "rest on the the happenstance happenstance of decision.” 132 S. (2011). decision." See See Judulang Judulang v. v. Holder, Holder, 132 S. Ct. Ct. 476, 476, 486 486 (2011). In all events, the the immigration In all events, immigration judge judge lacked lacked the the authority authority here here to to
make it did: did: requiring requiring him him to to make the the specific specific request request of of Petitioner Petitioner that that it obtain conviction. See AR 110. 110. obtain the the plea plea transcript transcript for for his his grand grand larceny larceny conviction. See AR The INA INA "unambiguously The “unambiguously authorizes authorizes IJs IJs to to request request corroboration corroboration of of only only
testimonial and conspicuously conspicuously excludes authority to testimonial evidence, evidence, and excludes the the authority to require an alien alien to to corroborate corroborate 'other ‘other evidence in the require an evidence in the record,’” record,' including including “judicially noticeable "judicially noticeable conviction conviction documents.” documents." Rosas-Castaneda Rosas-Castaneda v. v. (discussing Holder, 884-85 (9th 2011) (discussing Holder, 655 655 F.3d F.3d 875, 875, 884-85 (9th Cir. Cir. 2011)
8 U.S.C. § 1229a(c)(4)(B)). 1229a(c)(4)(B)). Although Although Young 8 U.S.C. § Young overruled overruled RosasRosasCastaneda’s burden-of-proof holding, it reaffirmed RosasCastaneda's separate separate burden-of-proof holding, it reaffirmed RosasCastaneda on this this point, that the the statute statute "merely “merely allows allows the Castaneda on point, holding holding that the IJ IJ to corroborative evidence “says nothing to require require corroborative evidence for for testimony,” testimony," and and "says nothing about additional evidence supplement the about opening opening the the door door for for additional evidence to to supplement the
35 35
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documentary documentary record record of of conviction.” conviction." Young, Young, 697 697 F.3d F.3d at at 984 984 (citing (citing Rosas-Castaneda, at 884-85). 884-85). Rosas-Castaneda, 655 655 F.3d F.3d at CONCLUSION CONCLUSION For the foregoing foregoing reasons, the Court For the reasons, the Court should should hold hold that that under under Moncrieffe, ambiguous record conviction does bar an Moncrieffe, an an ambiguous record of of conviction does not not bar an applicant applicant from seeking from seeking discretionary discretionary relief relief from from removal. removal. Respectfully submitted, Respectfully submitted, Srikantiah Jayashri Jayashri Srikantiah Lisa Lisa Weissman-Ward Weissman-Ward IIMMIGRANTS' MMIGRANTS’ R IGHTS C LINIC, RIGHTS CLINIC, MILLS CLINIC MILLS LEGAL LEGAL C LINIC STANFORD LAW S TANFORD L AW S CHOOL SCHOOL 559 Abbott Way 559 Nathan Nathan Abbott Way Stanford, Stanford, CA CA 94305 94305
/s/Robert Loeb /s/Robert M. M. Loeb Robert M. Loeb Loeb Robert M. Thomas Thomas M. M. Bondy Bondy & O RRICK, H ERRINGTON & ORRICK, HERRINGTON SUTCLIFFE LLP S UTCLIFFE LLP 1152 1152 15th 15th Street Street NW NW Washington, 20005 Washington, DC DC 20005 (202) (202) 339-8400 339-8400
Manuel Vargas Manuel Vargas Andrew Wachtenheim Andrew Wachtenheim DEFENSE PROJECT IIMMIGRANT MMIGRANT D EFENSE P ROJECT St., Fifth Fifth Floor Floor 40 40 W. W. 39th 39th St., New York, NY 10018 New York, NY 10018
Aaron W. W. Scherzer Scherzer Aaron & O RRICK, H ERRINGTON & ORRICK, HERRINGTON SUTCLIFFE LLP S UTCLIFFE LLP 51 51 W. W. 52nd 52nd Street Street New York, NY 10019 New York, NY 10019 Brian Brian P. P. Goldman Goldman & O RRICK, H ERRINGTON & ORRICK, HERRINGTON S UTCLIFFE LLP SUTCLIFFE LLP 405 405 Howard Howard Street Street San San Francisco, Francisco, CA CA 94105 94105
Counsel Amici Counsel for for Amici 2016 October October 31, 31, 2016
36 36
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ADDENDUM ADDENDUM •• In In re re E-H-, E-H-, AXXXXXX689 AXXXXXX689 (BIA (BIA May May 20, 20, 2015) 2015) (unpublished) (unpublished) — – Add. Add. 1 1
(68 of 75) of Justice &"%"4#)/'02,)-24.*4$312+()4 Department RESTRICTED Case: 13-74324, 10/31/2016, U.S. ID: 10180085, DktEntry: 32-2, Page 48 of 55 Executive Office for Immigration Review N¹pl±¦µp½Xwlp½y½Sb§½Zpµp¸½
#5'7);5+; Board of %Immigration 33/-7'9054;"66*'28; Appeals &,(*;5+; 9.*;$2*71; Office of the Clerk 51 .07 Leeshrg Pike. Suite 2000 '/,(I=44C3@+A5I-8<4"I.F9E4I%$$$I 20530 *1>DI)6GH7#I 0;B59?92I %$'&$I Falls Church, Virginia
A8C Office of Chief Counsel - ATL DHS/ICE & <46_BLLPIK_UL_4OPKL_4U[TYKR_^_2D>_ 180 Spring Street, Suite 332 (.'_CVXPTM_CZWKKZ#_C[PZK_**)_ Atlanta, GA 2ZRGTZG#_ 72_*'*'*_ 30303
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4GSVHKRQ"_ Kristina =WPYZPTG_?PINKRQK_ Michelle Campbell, E54_CINUUQ_UL_>G]_;SSPMWGZPUT_4RPTPI_ UDC School of Law Immigration Clinic +)''_4UTTKIZPI[Z_2\KT[K_ 4200 Connecticut Avenue 3QJM_, Bldg )_ 52 FGYNPTMZUT#_54_)'''._ Washington, DC 20008
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)'&)'(,_ Date of this notice: 512012015 5GZK_UL_ZOPY_TUZPIK1_,&
Ol£pn½£½b½lº½q½¨p½Ibn%£½npl£½bn½np½½¦p½bjµp-pqpplpn½lb£p1½ Enclosed is a copy of the Board's decision and order in the above-referenced case. Sincerely, [lppº*½ allAJ #$&"%&
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Mb½Lb½ Donna Carr Lpq½Lp½ Clerk Chief Enclosure Nl£²p½ Panel .4C;@R-;B6;EI'R Members: *DA;"R Patricia /4KF>7>4R)%R Cole, A. /4N@;P#R Roger 0D<;FR Pauley 3;C9L@4C9"R ,>C94R1$R Wendtland, Linda S.
J8=O5GQ(R schwarzP 2I;HM;4B'R +D7?;LR Userteam: Docket
Hqt!oqtg!wprwdnkujgf!DKC!fgekukqpu-!xkukv For more unpublished BIA decisions, visit yyy/ktce/pgv0wprwdnkujgf0kpfgz0 www.irac.net/unpublished/index/ Add. 11 Add.
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(69 of 75) RESTRICTED Case: 13-74324, 10/31/2016, ID: 10180085, DktEntry: 32-2, Page 49 of 55
U.S. Department of Justice
+86BNAKHXK9X P?8X)K4M7XK9X /GB>4PAKIX(LL84DNX Decision of the Board of immigration Appeals
,W85SQBT8X1;68X
4QAKHX28TB8UX Executive Office for Immigration Review -4DDNX*?V6?"X3AM=AJA4X Falls Church, Virginia %$'&$X 20530
File:
689 - Atlanta, GA
Date:
MAY 2 0 2015) () $"&#%'
In re: El. 4= a.k.a.
APPEAL ON BEHALF OF RESPONDENT: Kristina M. Campbell, Esquire ON BEHALF OF DHS:
Gene P. Hamilton Assistant Chief Counsel
CHARGE: Notice: Sec.
237(a)(2)(A)(ii), I&N Act [8 U.S.C. § 1227(a)(2)(A)(ii)] Convicted of two or more crimes involving moral turpitude
APPLICATION: Cancellation of removal
The Department of Homeland Security ("DHS") has appealed from an Immigration Judge's May 13, 2014, decision granting the respondent cancellation of removal pursuant to section 240A(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a). 1229b(a).'"$ The respondent has filed a brief on appeal. The appeal will be dismissed. The respondent, a native and citizen of Bosnia-Herzegovina, was admitted to the United States as a lawful permanent resident. On August 17, 2009, he pleaded guilty to theft by shoplifting in violation of section 16-8-14 of the Georgia Code and was sentenced to 12 months in prison. On November 23, 2009, the respondent pleaded guilty to pedestrian under the influence in violation of Ga. Code § 40-6-95 and underage possession of alcohol in violation of Ga. Code § 3-3-23. The respondent also has convictions for obstruction of a law enforcement officer, driving under the influence, aggravated assault, and public drunkenness. The DHS argues on appeal that the respondent is not eligible for cancellation of removal because he has not met his burden of showing that his conviction for theft by shoplifting is not an "#
On October 27, 2014, we returned this case to the Immigration Judge because the record did On not include a separate oral or written Immigration Judge decision. The Immigration Judge subsequently prepared a written decision dated December 3, 2014, which was served on the parties on December 4, 2014. Hereinafter, references to the Immigration Judge's decision relate to the written decision issued in December 2014. I
Add. 2 2 Add.
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IN REMOVAL PROCEEDINGS
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BDE½ 689
^p½cpp½¸©
½©p½U We agree with the Immigration Judge that the respondent has met his burden of showing that "cª½V±op½¬c©½©p½p¤op©½
c¤½p©½¤½k´op½r½¤
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c«½ his conviction for theft by shoplifting is not an aggravated felony barring him from eligibility for ¤½m¶m©½z½©p|½k»½¤
}½¤½©½c½c "c¶c©po½rp»½kc½
½{½pk©»½z½ mcmpc©½ of r½ removal. p¶c5½ In U½ this ©¤½ case, mc¤p+½ the ©
p½ record pmo½ of r½ conviction m¶m®½ is ¤½ inconclusive mm±¤¶p½ whether ¸
p©
p½ the ©
p½ cancellation respondent was convicted under the element of theft by shoplifting requiring a mens rea of intent p¤op©½¸i½m¶m©po½±op½©
p½ppp©½r½©p|½k»½¤
}½p±½c½p¤½pc½r½©p©½ ©½op¶p½ ¬p½¸p½r½ ¤¤p¤¤½ of r½ the ©p½pm
co¤p+½¸
m
½ ¸±o½m¤©©±©p½c½cc¶c©po½ to deprive the owner of possession merchandise, which would constitute an aggravated felony Ramos v. Att'y General, supra, 1070-71. Under Moncrieffe MJREDY
2>½
Add. 3 3 Add.
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c¶c©po½ felony rp»½ theft ¬p|½ offense. vp¤p2½ See
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689
The The DHS DHS argues argues on appeal appeal that that the respondent's respondent's long term term residence residence and family family ties in the the United United States States do not not outweigh outweigh his arrest arrest record, record, his lack lack of acceptance acceptance of responsibility responsibility for for his actions, actions, his prior prior marijuana marijuana use, and his admission admission that that he violated violated the the terms terms of his probation probation in August August 2012 by by smoking smoking marijuana marijuana (Tr. (Tr. at 91). The The "clearly "clearly erroneous" erroneous" standard standard for for reviewing reviewing the the Immigration Immigration Judge's Judge's assessment assessment of a G9S1C5S.ID5P4MLSD;S)1@?EK>1"S witness's L88S)DB4H8M8S.= witness's credibility credibility is "significantly "significantly deferential," deferential," see Concrete Pipe and Products of California, Inc. v. *B4&S R&S Construction )DBLMJQ4M=DBS,13DH8HLS.8BL=DBS0HPLNS;FHS/DPM<8KS)2@?DIB=1 Laborers Pension Trust for Southern California,#S 508 U.S. 602, 623 (1993), and therefore therefore this this Board Board is precluded precluded from from reversing reversing the the Immigration Immigration Judge's Judge's findings findings of fact fact simply simply because because we are convinced convinced that that we would would have have decided decided the the case or weighed weighed the the evidence evidence )=OSD;S(8LL8A8HS )=O$S -FHN
"# 3
Add. 4 4 Add.
Kookitcpv!'!Tghwigg!Crrgnncvg!Egpvgt-!NNE!~!yyy/ktce/pgv Immigrant&RefugeeAppellateCenter,LLCI www.irac.net
The Immigration The Immigration Judge Judge granted granted the the respondent respondent cancellation cancellation of removal removal in the the exercise exercise of discretion. discretion. He found found the the respondent's respondent's testimony testimony regarding regarding remorse remorse for for his convictions convictions to be credible. credible. In In addition, addition, he found found that that the the respondent's respondent's testimony testimony about about his past past and the the changes changes he will make make in the the future future weighs weighs in favor favor of granting granting relief. relief. Further, Further, the the Immigration Immigration Judge Judge cited cited the the respondent's respondent's residence residence in the the United United States States since 2000 when when he was 10 years years old, his employment employment history, history, payment payment of taxes, taxes, United United States States citizen citizen parents parents and and other other close family family members members who who are supportive, supportive, and the the fact fact that that he has not not had had a conviction conviction for for over over 2 years years (I. Lat Lat 4-5).
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#
%$689 opportunity to complete or update identity, law enforcement, or security investigations or examinations, and further proceedings, if necessary, and for the entry of an order as provided by 8 C.F.R. § 1003.47(h).
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Add. 55 Add. Add 5
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U.S. Department of Justice '"&#$*/(0*-2.+%312,)*4
Decision of the Board of Immigration Appeals +85COCKHXK9X R@8X)K4M7XK9FGC>4RCKHX(LL84ENX
,W85SRCT8X1;58X4RCKIX28TC8UX Executive Office for Immigration Review .4FFOX*@SM5@#X3CM=CHC4X%$'&$X Falls Church, Virginia 20530
File:
89 — Atlanta, GA
Date:
(')* 20 $"&#%* WY 2015
In re: MEM a.k.a. Edin Edo Hindic
The majority opinion is at odds with the overwhelming weight of authority in finding that an alien meets his or her burden of proof that a conviction does not bar the alien from eligibility for Mondragon v. 7NKDEP&Y Holder, 706 F.3d 535,
Pkl'-i i
e ---------r ----- BOARD MEMBER
I also strongly disagree with the majority's favorable exercise of discretion, given the respondent's significant criminal history. 1
Add. 6 6 Add.
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DISSENTING OPINION: Roger A. Pauley
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CERTIFICATE OF COMPLIANCE CERTIFICATE OF COMPLIANCE This brief This brief complies complies with with the limitation of App. the type-volume type-volume limitation of Fed. Fed. R. R. App.
P. because this brief contains the parts P. 29(d) 29(d) because this brief contains 6,936 6,936 words, words, excluding excluding the parts of of the brief exempted by Fed. App. P. Fed. R. R. App. P. 32(a)(7)(B)(iii). 32(a)(7)(B)(iii). the brief exempted by This brief complies complies with with the App. This brief the typeface typeface requirements requirements of of Fed. Fed. R. R. App. P. and the App. P. P. 32(a)(5) 32(a)(5) and the type type style style requirements requirements of of Fed. Fed. R. R. App. P. 32(a)(6) 32(a)(6) because this brief has been prepared in a because this brief has been prepared in a proportionally proportionally spaced spaced typeface typeface using Word 2013 2013 in in Century 14-point font. using Microsoft Microsoft Word Century Schoolbook Schoolbook 14-point font. &S SUTCLIFFE O RRICK, H ERRINGTON & UTCLIFFE LLP LLP ORRICK, HERRINGTON Loeb /s/ /s/ Robert Robert M. M. Loeb Robert M. Loeb Robert M. Loeb Counsel Counsel for for Amici Amici
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CERTIFICATE OF SERVICE SERVICE CERTIFICATE OF II hereby certify that with the hereby certify that II electronically electronically filed filed the the foregoing foregoing with the Clerk the Court for the the United United States Appeals for for the Clerk of of the Court for States Court Court of of Appeals the Ninth Ninth Circuit the appellate Circuit by by using using the appellate CM/ECF CM/ECF system system on on October October 31, 31, 2016. 2016. II certify certify that in the case are that all all participants participants in CM/ECF the case are registered registered CM/ECF users and that will be be accomplished users and that service service will accomplished by by the the appellate appellate CM/ECF CM/ECF system. system. O RRICK, H ERRINGTON & UTCLIFFE LLP &S SUTCLIFFE LLP ORRICK, HERRINGTON Loeb /s/ /s/ Robert Robert M. M. Loeb Robert M. Loeb Robert M. Loeb Counsel Amici Counsel for for Amici
