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Records of Conviction and the Burden of Proof

Background

IDP, represented by Stanford Law School’s Immigrants’ Rights Clinic, is engaged in litigation before the Court of Appeals and BIA to ensure that noncitizens are not barred from establishing eligibility for relief from removal or for lawful status just because a “record of conviction” is ambiguous as to whether the conviction is for a disqualifying offense. IDP has appeared as amicus curiae and coordinated litigation on this issue before the BIA and nearly every federal Court of Appeals. If you are litigating a burden of proof issue, please contact IDP’s litigation staff attorney, Andrew Wachtenheim, at andrew[at]immdefense[dot]org, for technical assistance and additional support.

This webpage presents a set of litigation resources on this burden of proof issue. These resources include the First Circuit’s 2016 favorable decision in Sauceda v. Lynch; the favorable 2015 concurring opinion of Ninth Circuit Judge Watford in Almanza Arenas v. Lynch; IDP’s practice advisory on the 2013 Moncrieffe decision (prepared with the American Immigration Council and the National Immigration Project); model briefing (prepared with Stanford Law School in 2012 prior to the Supreme Court’s decision in Moncrieffe); and decisions and relevant briefing on the agency and federal court case law on the burden of proof.

Through this litigation campaign, IDP seeks to protect the ability of noncitizens to apply for relief from removal and other immigration benefits in cases where the immigration adjudicator or federal judge is permitted to examine specified criminal documents under a “modified categorical approach” for determining the immigration consequences of a criminal justice system contact. In cases where the conviction documents are ambiguous as to the offense of conviction, the law is clear that the government, which bears the legal burden of proving the noncitizen criminally deportable, cannot do so. The government, in turn, argues that the noncitizen, who bears the burden of showing eligibility for relief from deportation, likewise cannot do so with ambiguous documents. The government’s position places an insurmountable burden on immigrants seeking relief from deportation and defies the guidance issued by the Supreme Court in Moncrieffe v. Holder.

Under the government’s view, huge numbers of immigrants would be permanently barred from lawful status or relief from deportation because the conviction documents they that they need either do not exist, do not contain certain necessary information, or cannot be accessed.  The provisions of the immigration laws to which the government cites do not authorize such an unfair system, nor does Supreme Court jurisprudence. Nonetheless, the government continues to push this unfair and incorrect interpretation of law. IDP and our allies are committed to pursuing fair rulings from the BIA and the Courts of Appeals on this issue that directly affects the ability to remain in the United States for immigrants who have had contacts with the criminal justice system.

Litigation Resources

Key or Recent Federal Circuit Court Case Law

 First Circuit

Sauceda v. Lynch, 819 F.3d 526 (1st Cir. 2016). In an opinion issued on April 22, 2016 after panel rehearing, the First Circuit reversed course and found that under Moncrieffe, an inconclusive record of conviction does not establish conviction of a disqualifying offense and thus does not bar a noncitizen from establishing eligibility for relief from removal. The Court remanded for consideration of the petitioner’s application for cancellation of removal. In this case, the immigration agency had found that the noncitizen’s family would experience exceptional and extremely unusual hardship if he were deported, but that he could not satisfy his burden of proving eligibility for cancellation relief because a Maine court’s records did not reflect whether his prior misdemeanor offense was disqualifying. The First Circuit overruled the agency’s decision, finding that under Moncrieffe, the presumption, where all available documents from the record of conviction have been produced but are inconclusive, is that the conviction is for the minimum conduct punishable under the statute of conviction which does not correspond to the disqualifying immigration provision.

Second Circuit

Martinez v. Mukasey, 551 F.3d 113 (2d Cir. 2008). The immigrant in this case was a lawful permanent resident seeking cancellation of removal under INA § 240A(a). The Second Circuit, applying the strict categorical approach, found that his prior convictions for marijuana sale were not drug trafficking aggravated felonies and therefore did not preclude him from applying for discretionary relief. The Court further found that where a statute of conviction is analyzed under the categorical approach, the immigrant does not bear the burden of proving s/he was not convicted of an offense that would bar eligibility for discretionary relief. For the Second Circuit, it was sufficient that the minimum conduct punishable under the statute of conviction did not match the immigration removability provision (i.e., the drug trafficking aggravated felony ground) and the noncitizen did not bear the burden of proving his particular conviction was for the minimum conduct.

Third Circuit

Hernandez-Cruz v. Att’y Gen., 764 F.3d 281 (3d Cir. 2014). The Third Circuit held that where a prior criminal conviction, under the categorical approach, does not trigger a federal immigration provision, the noncitizen has satisfied his/her burden of proving s/he is eligible to apply for relief. Hernandez-Cruz was undocumented and seeking cancellation of removal under INA § 240A(b)(1). Under the categorical approach, the minimum conduct punishable under the statute of conviction in his case was found not to involve moral turpitude. Because the Court was using categorical analysis, it did not examine Hernandez-Cruz’s own conduct.

Syblis v. Att’y Gen., 763 F.3d 348 (3d Cir. 2014). With respect to the burden of proof, the Third Circuit held that where the record of conviction is inconclusive, the noncitizen cannot satisfy his/her burden of proving s/he is not criminally barred from seeking relief from removal. The Court was not clear as to whether this is true only where the statute of conviction is not subject to the categorical approach. The petitioner, with IDP as amicus, filed a petition for panel and en banc rehearing, which was denied by the Third Circuit in December 2014. The briefs submitted in support of the Petition for Rehearing present arguments to be made pending the Supreme Court’s impending decision in Mellouli v. Holder.

Thomas v. Att’y Gen., 625 F.3d 134 (3d Cir. 2010). The Third Circuit held that where a prior criminal conviction, under the categorical approach, does not trigger a federal immigration provision, the noncitizen has satisfied his/her burden of proving s/he is eligible to apply for relief. Thomas was a lawful permanent resident seeking cancellation of removal under INA § 240A(a). Under the categorical approach, the minimum conduct punishable under the statute of conviction (social sharing of marijuana, rather than sale for money) was found not to be a drug trafficking aggravated felony. Thomas’s record of conviction did not show whether his conduct was for social sharing or sale for money. The Third Circuit remanded Thomas’s proceedings for him to apply for discretionary relief.

Fourth Circuit

In Mondragon v. Holder, 706 F.3d 535 (4th Cir. 2013) and then in Carrasco-Chavez v. Holder, 529 Fed.Appx. 373 (4th Cir. June 20, 2013) (unpublished), immigrants supported by IDP and allies challenged the Fourth Circuit’s unfavorable burden of proof ruling from Salem v. Holder, 647 F.3d 111 (4th Cir. 2011). Relying on its prior ruling in Salem, the Fourth Circuit denied both petitions for review. The petitioner in Salem was a lawful permanent resident seeking to establish eligibility for cancellation of removal under INA § 240A(a). The Court analyzed his statute of conviction under the modified categorical approach and found that because his record of conviction was inconclusive, he could not establish that he had not been convicted of an aggravated felony and therefore could not establish his eligibility for discretionary relief.

Seventh Circuit

Sanchez v. Holder, 757 F.3d 712 (7th Cir. 2014).  The Seventh Circuit stepped outside of the categorical approach and applied the third step of Silva-Trevinoanalysis. With respect to the burden of proof, the Court found that the noncitizen could not show eligibility for relief because the record of conviction in his case was inconclusive as to whether he had been convicted of a crime involving moral turpitude. The Court denied Sanchez’s petition for panel and en banc rehearing.

Ninth Circuit

Almanza-Arenas v. Holder, 771 F.3d 1184 (9th Cir. 2014) (vacated). The Ninth Circuit held that where a statute of conviction is subject to the strict or modified categorical approach, a noncitizen with an inconclusive record of conviction satisfies his/her burden of proving s/he is not criminally barred from seeking relief from removal. The Ninth Circuit found that the Supreme Court’s decision in Moncrieffe v. Holder overruled the Circuit’s prior precedent on the burden of proof question, Young v. Holder. The Ninth Circuit voted to rehear this case en banc in Almanza-Arenas v. Lynch, __ F.3d __, 2016 WL 766753 (9th Cir. Feb. 29, 2016) and granted the petition for review on other grounds and thus declined to reach the question of the burden of proof. Judge Watford issued a concurring opinion finding that Moncrieffe has overruled Young.

Tenth Circuit

Garcia v. Holder, 584 F.3d 1288 (10th Cir. 2009). Mr. Garcia was an undocumented immigrant seeking cancellation of removal under INA § 240A(b)(1). The Court analyzed his prior assault conviction under the categorical approach but did not specify whether it was employing the strict or modified categorical approach. The Court found that because Mr. Garcia’s record of conviction was inconclusive as to whether his assault conviction was a crime involving moral turpitude, he could not meet his burden or proving eligibility for discretionary relief.

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