Records of Conviction and the Burden of Proof


IDP is engaged in litigation before the federal courts and BIA challenging government efforts to bar noncitizens from establishing eligibility for relief from removal or eligibility for lawful status solely because a “record of conviction” is merely ambiguous as to whether the conviction is for a disqualifying offense under immigration law. Under the government’s view, noncitizens could be barred from eligibility for relief or lawful status based on an ambiguous record of conviction–one that fails to conclusively establish a disqualifying conviction–even when relevant conviction documents either do not exist, do not contain necessary information, or simply cannot be accessed. In partnership with Jayashri Srikantiah, Professor of Law at Stanford Law School, and Brian Goldman, an appellate litigator with the Orrick law firm, IDP has appeared as amicus curiae and has coordinated litigation on this issue before the BIA and nearly every federal Court of Appeals and the Supreme Court.

The Supreme Court’s Decision in Pereida v. Wilkinson

On March 4, 2021, the Supreme Court issued Pereida v. Wilkinson, No. 19-438 (2021), a 5-3 opinion in favor of the government’s position. The decision creates a national rule concerning the impact of inconclusive criminal court plea and conviction documents for noncitizens applying for relief from removal in immigration proceedings, specifically in cases where the modified categorical approach applies. IDP, in collaboration with NIP-NLG, has issued the following practice alert providing a summary of the opinion and initial advice and guidance for immigration and criminal defense lawyers in anticipation of how immigration authorities are likely to apply Pereida in removal proceedings and other immigration contexts: 

The Pereida Court found that where a noncitizen is applying for relief from removal and has a conviction under a multiple-offenses statute, the noncitizen has the burden of proving the offense of conviction. Where the conviction is under a divisible statute and the “record of conviction” documents before the adjudicator do not necessarily establish conviction for a disqualifying crime, the Court ruled that the noncitizen cannot satisfy their burden of proving relief eligibility by relying only on the inconclusiveness of that record. Rather, the noncitizen must submit evidence to establish conviction of a non-disqualifying crime. 

Pereida reverses immigrant-favorable decisions on this issue in the First, Second, Third, and Ninth Circuits: Sauceda v. Lynch, 819 F.3d 526 (1st Cir. 2016); Martinez v. Mukasey, 551 F.3d 113 (2d Cir. 2008); Thomas v. Att’y Gen., 625 F.3d 134 (3d Cir. 2010); Marinelarena v. Barr, 930 F.3d 1039 (9th Cir. 2019) (en banc). It affirms much of the reasoning and holdings in immigrant-adverse decisions on this issue in the Fourth, Sixth, Eighth, and Tenth Circuits: Salem v. Holder, 647 F.3d 111 (4th Cir. 2011); Gutierrez v. Sessions, 887 F.3d 770 (6th Cir. 2018); Lucio-Rayos v. Sessions, 875 F.3d 573 (10th Cir. 2017).  

IDP disagrees firmly with the Court’s decision in Pereida as an incorrect, ahistorical application of the categorical approach that will cause significant fairness and due process problems for noncitizens with criminal convictions, as reflected in the amicus briefs we and partner organizations filed with the Court: Brief of Immigration Law Professors as Amici Curiae in Support of Petitioner, 2020 WL 598383 (describing how the categorical approach is a legal inquiry that courts have applied consistently for over a century focused on the minimum conduct covered by a conviction, irrespective of the burden of proof); Brief for Amici Curiae National Association of Criminal Defense Lawyers, et al., in Support of Petitioner, 2020 WL 583960 (describing how criminal court records of conviction are often unavailable or inconclusive through no fault of the noncitizen); and Brief of Immigrant Defense Project et al as Amici Curiae in Support of Petitioner, 2020 WL 598382 (describing how requiring noncitizens who are often detained and unrepresented to obtain criminal record documents, even if they exist, ignores the fairness rationales underlying the categorical approach).

IDP remains committed to pursuing fair rulings from the BIA and the Courts of Appeals on this issue that directly affects many immigrants’ ability to remain in the United States.

Practice Advisories

Amicus Briefs