6th Circuit’s Decision in Gutierrez v. Sessions Adds It to Circuit Split on Issue - Articles

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Posted by: Alicia Triche on Jun 19, 2018

In U.S. immigration law, aliens with “aggravated felony” convictions are disqualified from numerous defenses to deportation/removal, including “LPR cancellation.”[i]However, a current disjunct in the law has caused a substantial split among the circuit court of appeals. 

Under the “categorical approach” to crimmigration, an ambiguous record does not create an “aggravated felony.”[ii]However, when seeking relief from removal, the alien bears the burden of proof by a preponderance of the evidence.[iii]The question created is, can the same record of proceedings truly create an “aggravated felony” for one purpose (relief), but not another (deportability)? Numerous circuits have split on this issue.[iv]

On April 16, 2018, the Sixth Circuit waded into the debate, issuing a published decision that may wind its way to the U.S. Supreme Court.[v]On a circuit-split issue, Gutierrez v. Sessions held: “[W]here a petitioner for relief under the INA[vi]was convicted under an overbroad and divisible statute, and the record of conviction is inconclusive as to whether the state offense matched the generic definition of a federal statute, the petitioner fails to meet her burden.” 887 F.3d at 779.  

Miriam Gutierrez is a 60-year-old Bolivian grandmother who has been a legal permanent resident (“LPR”) for many years. Her case originated in Memphis Immigration Court, where Sheryl Hurst represented her in proceedings before Immigration Judge Rebeca Holt. Hurst appealed IJ Holt’s decision to the Board of Immigration Appeals (BIA), prompting a decision that set the case up perfectly for further appeal. The undersigned took over at the Sixth Circuit level, and Sean Lewis of Nashville was able to temporarily obtain the reinstatement of an “Order of Supervision” so that Gutierrez could remain on immigration parole while her Sixth Circuit case progressed. 

Gutierrez has a colorful case history, and at issue in the Sixth Circuit case was her Virginia conviction for credit card fraud. The BIA ruled, and the Sixth Circuit agreed, that only some sections of the Virginia statute were “aggravated felonies”. However, Gutierrez’s record of conviction failed to reveal which section of the statute applied to her conviction. As the Court explained, “the sole issue in dispute [is] which side may claim the benefit of the record’s ambiguity.” 887 F.3d at 775 (internal quotation marks and brackets omitted). The Court acknowledged the Supreme Court’s ruling in Moncrieffethat a court examining the effect of a state conviction “must presume that the conviction ‘rested upon [nothing] more than the least of th[e] acts’ criminalized.” Id.at 776, quoting Moncrieffe, 569 U.S. at 190-91. It concluded, however, that Moncrieffe’s presumption applies only to determinations of removability, not relief from removal, and only when applying the categorical approach, not the modified categorical approach. Id.

In a very exciting turn of events for the Petitioner, one of the largest firms in the country, Orrick, Herrington & Sutcliffe has entered a pro bono appearance in her case, petitioning for rehearing to the Sixth Circuit, and vowing, if necessary, to take her case to the Supreme Court. Orrick, Herrington & Sutcliffe has formed a nation-wide team of six attorneys in the case, led by Brian P. Goldman and Cynthia Stein in San Francisco. Their Petition for Rehearing is soon to be submitted, and in the meanwhile they have also applied for a Stay of Removal to the U.S. Supreme Court. Triche remains counsel of record in the Sixth Circuit and the Supreme Court cases. 

Gutierrez is now detained in Jena, Louisiana, awaiting her fate. I will keep you updated on new developments.


[i]8 U.S.C.A. § 1229b(a), INA § 240A(a) (Westlaw 2018) (LPR Cancellation); 8 U.S.C. § 1101(a)(43), INA § 101(a)(43) (aggravated felony definition).

[ii]See, e.g., Moncrieffe v. Holder, 569 U.S. 184 (2013).

[iii]8 U.S.C.A. §1229(a)(c)(4); INA § 240(c)(4).

[iv]See, e.g., Lucio-Rayos v Sessions, 875 F.3d 575, 582-83, 583 n.14 (10th Cir. 2017); Sauceda v. Lynch, 819 F.3d 526, 531-32, 532 n.10, 534 (1st Cir. 2016). The Ninth Circuit is currently reconsidering the issue. Marinelarena v. Sessions, 886 F. 3d 737 (9th Cir. Mar. 29, 2018). 

[v][v]Gutierrez v. Sessions, 887 F.3d 770 (6thCir. 2018).                                

[vi]U.S. Immigration and Nationality Act, 8 U.S.C. § 1101 et seq. (1952). 


Dr. Alicia Triche is the founder of Triche Immigration Appeals, based in Memphis, Tennessee, where she exclusively practices immigration with a focus on direct legal representation for clients facing US immigration appeals, and á la carte services for U.S. attorneys. Alicia is a graduate of George Washington University Law School and College of Lady Margaret at Oxford University, where she received her ‘D.Phil.’ in law and authored the doctoral thesis – “International Refugee Law and National Security.”  She may be reached ataliciatrichedphil@gmail.comor 901-322-8207.

— Dr. Alicia Triche is the founder of Triche Immigration Appeals, based in Memphis, Tennessee, where she exclusively practices immigration with a focus on direct legal representation for clients facing US immigration appeals, and á la carte services for U.S. attorneys. Alicia is a graduate of George Washington University Law School and College of Lady Margaret at Oxford University, where she received her ‘D.Phil.’ in law and authored the doctoral thesis – “International Refugee Law and National Security.”  She may be reached at 901-322-8207.