Pereida v. WILKINSON, acting Attorney General

Certiorari To The United States Court Of Appeals For The Eighth Circuit

No. 19–438. Argued October 14, 2020—Decided March 4, 2021

Immigration officials initiated removal proceedings against Clemente Avelino Pereida for entering and remaining in the country unlawfully, a charge Mr. Pereida did not contest. Mr. Pereida sought instead to establish his eligibility for cancellation of removal, a discretionary form of relief under the Immigration and Nationality Act (INA). 8 U. S. C. §§1229a(c)(4), 1229b(b)(1). Eligibility requires certain nonpermanent residents to prove, among other things, that they have not been convicted of specified criminal offenses. §1229b(b)(1)(C). While his proceedings were pending, Mr. Pereida was convicted of a crime under Nebraska state law. See Neb. Rev. Stat. §28–608 (2008). Analyzing whether Mr. Pereida’s conviction constituted a “crime involving moral turpitude” that would bar his eligibility for cancellation of removal, §§1182(a)(2)(A)(i)(I), 1227(a)(2)(A)(i), the immigration judge found that the Nebraska statute stated several separate crimes, some of which involved moral turpitude and one—carrying on a business without a required license—which did not. Because Nebraska had charged Mr. Pereida with using a fraudulent social security card to obtain employment, the immigration judge concluded that Mr. Pereida’s conviction was likely not for the crime of operating an unlicensed business, and thus the conviction likely constituted a crime involving moral turpitude. The Board of Immigration Appeals and the Eighth Circuit concluded that the record did not establish which crime Mr. Pereida stood convicted of violating. But because Mr. Pereida bore the burden of proving his eligibility for cancellation of removal, the ambiguity in the record meant he had not carried that burden and he was thus ineligible for discretionary relief.

Held: Under the INA, certain nonpermanent residents seeking to cancel a lawful removal order bear the burden of showing they have not been convicted of a disqualifying offense. An alien has not carried that burden when the record shows he has been convicted under a statute listing multiple offenses, some of which are disqualifying, and the record is ambiguous as to which crime formed the basis of his conviction. Pp. 5–17.

 (a) The INA squarely places the burden of proof on the alien to prove eligibility for relief from removal. §1229a(c)(4)(A). Mr. Pereida accepts his burden to prove three of four statutory eligibility requirements but claims a different rule should apply to the final requirement at issue here—whether he was convicted of a disqualifying offense. Mr. Pereida identifies nothing in the statutory text that singles out that lone requirement for special treatment. The plain reading of the text is confirmed by the context of three nearby provisions. First, the INA specifies particular forms of evidence that “shall constitute proof of a criminal conviction” in “any proceeding under this chapter,” regardless of whether the proceedings involve efforts by the government to remove an alien or efforts by the alien to establish eligibility for relief. §1229a(c)(3)(B). Next, Congress knows how to impose the burden on the government to show that an alien has committed a crime of moral turpitude, see §§1229a(c)(3), 1227(a)(2)(A)(i), and yet it chose to flip the burden when it comes to applications for relief from removal. Finally, the INA often requires an alien seeking admission to show “clearly and beyond doubt” that he is “entitled to be admitted and is not inadmissible,” §1229a(c)(2), which in turn requires the alien to demonstrate that he has not committed a crime involving moral turpitude, §1182(a)(2)(A)(i)(I). Mr. Pereida offers no account why a rational Congress would have placed this burden on an alien who is seeking admission, but lift it from an alien who has entered the country illegally and faces a lawful removal order. Pp. 5–7.

 (b) Even so, Mr. Pereida contends that he can carry the burden of showing his crime did not involve moral turpitude using the so-called “categorical approach.” Applying the categorical approach, a court considers not the facts of an individual’s conduct, but rather whether the offense of conviction necessarily or categorically triggers a consequence under federal law. Under Mr. Pereida’s view, because a person could hypothetically violate the Nebraska statute without committing fraud—i.e., by carrying on a business without a license—the statute does not qualify as a crime of moral turpitude. But application of the categorical approach implicates two inquiries—one factual (what was Mr. Pereida’s crime of conviction?), the other hypothetical (could someone commit that crime of conviction without fraud?). And the Nebraska statute is divisible, setting forth multiple crimes, some of which the parties agree are crimes of moral turpitude. In cases involving divisible statutes, the Court has told judges to determine which of the offenses an individual committed by employing a “modified” categorical approach, “review[ing] the record materials to discover which of the enumerated alternatives played a part in the defendant’s prior conviction.” Mathis v. United States, 579 U. S. ___, ___. This determination, like many issues surrounding the who, what, when, and where of a prior conviction, involves questions of historical fact. The party who bears the burden of proving these facts bears the risks associated with failing to do so. This point is confirmed by the INA’s terms and the logic undergirding them. A different conclusion would disregard many precedents. See, e.g., Taylor v. United States, 495 U. S. 575, 600. Just as evidentiary gaps work against the government in criminal cases where it bears the burden, see, e.g., Johnson v. United States, 559 U. S. 133, they work against the alien seeking relief from a lawful removal order. Congress can, and has, allocated the burden differently. Pp. 7–15.

 (c) It is not this Court’s place to choose among competing policy arguments. Congress was entitled to conclude that uncertainty about an alien’s prior conviction should not redound to his benefit. And Mr. Pereida fails to acknowledge some of the tools Congress seemingly did afford aliens faced with record-keeping challenges. See, e.g., §1229a(c)(3)(B). Pp. 15–17.

916 F. 3d 1128, affirmed.

 Gorsuch, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Alito, and Kavanaugh, JJ., joined. Breyer, J., filed a dissenting opinion, in which Sotomayor and Kagan, JJ., joined. Barrett, J., took no part in the consideration or decision of the case.


Certiorari To The United States Court Of Appeals For The Ninth Circuit

No. 19–547. Argued November 2, 2020—Decided March 4, 2021

The Environmental Protection Agency (EPA) proposed a rule in 2011 regarding “cooling water intake structures” used to cool industrial equipment. 76 Fed. Reg. 22174. Because aquatic wildlife can become trapped in these intake structures and die, the Endangered Species Act of 1973 required the EPA to consult with the U. S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) (together, the Services) before proceeding. Following this required consultation, the Services prepare an official “biological opinion” (known as a “jeopardy” or “no jeopardy” biological opinion) addressing whether the agency’s proposal will jeopardize the existence of threatened or endangered species. 50 CFR §402.14(h)(1)(iv). Issuance of a “jeopardy” biological opinion here would require the EPA either to implement certain alternatives proposed by the Services, to terminate the action altogether, or to seek an exemption. 16 U. S. C. §§1536(b)(4), (g), 1538(a). After consulting with the Services, the EPA made changes to its proposed rule, and the Services received the revised version in November 2013. Staff members at NMFS and FWS soon completed draft biological opinions concluding that the November 2013 proposed rule was likely to jeopardize certain species. Staff members sent these drafts to the relevant decisionmakers within each agency, but decisionmakers at the Services neither approved the drafts nor sent them to the EPA. The Services instead shelved the draft opinions and agreed with the EPA to extend the period of consultation. After these continued discussions, the EPA sent the Services a revised proposed rule in March 2014 that differed significantly from the 2013 version. Satisfied that the revised rule was unlikely to harm any protected species, the Services issued a joint final “no jeopardy” biological opinion. The EPA issued its final rule that same day.

  Respondent Sierra Club, an environmental organization, submitted requests under the Freedom of Information Act (FOIA) for records related to the Services’ consultations with the EPA. As relevant here, the Services invoked the deliberative process privilege to prevent disclosure of the draft biological opinions analyzing the EPA’s 2013 proposed rule. The Sierra Club sued to obtain these withheld documents, and the Ninth Circuit held that the draft biological opinions were not privileged because even though labeled as drafts, the draft opinions represented the Services’ final opinion regarding the EPA’s 2013 proposed rule.

Held: The deliberative process privilege protects from disclosure under FOIA in-house draft biological opinions that are both predecisional and deliberative, even if the drafts reflect the agencies’ last views about a proposal. Pp. 5–11.

 (a) FOIA mandates the disclosure of documents held by a federal agency unless the documents fall within certain exceptions. 5 U. S. C. §552(b). One of those exceptions, the deliberative process privilege, shields from disclosure documents reflecting advisory opinions and deliberations comprising the process by which the Government formulates decisions and policies. NLRB v. Sears, Roebuck & Co., 421 U. S. 132, 150. The privilege aims to improve agency decisionmaking by encouraging candor and blunting the chilling effect that accompanies the prospect of disclosure. The privilege distinguishes between predecisional, deliberative documents, which are exempt from disclosure, and documents reflecting a final agency decision and the reasons supporting it, which are not. See Renegotiation Bd. v. Grumman Aircraft Engineering Corp., 421 U. S. 168, 186. A document does not represent an agency’s final decision solely because nothing follows it; sometimes a proposal dies on the vine or languishes. What matters is if the agency treats the document as its final view and concludes the deliberative process by which governmental decisions and policies are formulated, giving the document “real operative effect.” See Sears, 421 U. S., at 150, 160. Pp. 5–7.

 (b) The deliberative process privilege protects the draft biological opinions from disclosure because they reflect a preliminary view—not a final decision—about the EPA’s proposed 2013 rule. The administrative context confirms that the draft opinions were subject to change and had no direct legal consequences. Because the decisionmakers neither approved the drafts nor sent them to the EPA, they are best described not as draft biological opinions but as drafts of draft biological opinions. While the drafts may have had the practical effect of provoking EPA to revise its rule, the privilege applies because the Services did not treat the drafts as final. Pp. 7–11.

925 F. 3d 1000, reversed and remanded.

 Barrett, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Alito, Kagan, Gorsuch, and Kavanaugh, JJ., joined. Breyer, J., filed a dissenting opinion, in which Sotomayor, J., joined.