Brief of Amici Curiae Immigrant Defense Project, Detention Watch Network, Heartland Alliance’s National Immigrant Justice Center, Immigrant Legal Resource Center, National Association of Criminal Defense Lawyers, National Immigration Law Center, and National Immigration Project of the National Lawyers Guild in Support of Petitioner’s Petition for Rehearing and Rehearing En Banc.
Argument: Amici urge the Court to grant rehearing or rehearing en banc because the panel’s decision is at odds with Moncrieffe v. Holder, 569 U.S. 184 (2013). Amici agree with Ms. Gutierrez that when the record of a prior conviction under a divisible statute is ambiguous, the conviction should not bar eligibility for relief from removal. Amici submit this brief to raise three additional points. First, the panel’s decision unfairly bases relief eligibility on the happenstance of whether a prior criminal court creates or maintains the records necessary to disprove a disqualifying conviction. The noncitizen has no control over these criminal court practices but, under the panel’s decision, could face ineligibility for relief because of them. Second, the panel’s decision ignores that noncitizens—who are often without counsel and detained—face far greater impediments to obtaining and submitting the required conviction records than the Department of Homeland Security (DHS). Third, the panel’s decision has a broad impact: it operates to categorically bar relief for asylum seekers, victims of crime, and those—like Ms. Gutierrez—with longstanding residence and deep family ties in this country.