Brief for Amici Curiae National Association of Criminal Defense Lawyers and National Association of Federal Defenders in Support of Petitioner.
Argument: Criminal Court records of conviction are often ambiguous, particularly in misdemeanor cases. In many lower criminal courts, misdemeanor convictions are not "on the record." Misdemeanor records often omit key information about the conviction. Even where misdemeanor records once existed, they may have been destroyed or may be otherwise inaccessible. Because criminal records are often ambiguous, the Eighth Circuit's approach leads to inconsistent immigration outcomes. Under the Eighth Circuit’s approach, two noncitizens convicted of the same divisible misdemeanor offense in different counties in the same state could face different immigration outcomes depending on the completeness of the Shepard documents from their criminal cases. When noncitizens are faulted for the paucity of these records, it creates a system in which immigration outcomes are tied to the bureaucratic decisions of county clerks’ offices and the idiosyncrasies of courts’ guilty plea processes. Such a system is wholly inconsistent with the categorical approach, which seeks to guarantee that “all defendants whose convictions establish the same facts … be treated consistently, and thus predictably, under federal law.” Moncrieffe, 569 U.S. at 205 n.11.