High Court Finds Burden of Proof to Stop Deportation Falls on Immigrant

The justices found that an undocumented immigrant seeking to cancel their deportation must prove they have not been convicted of a disqualifying crime when the record is unclear.

U.S. Immigration and Customs Enforcement officers detain a man during an operation in Escondido, Calif., in 2019. (AP Photo/Gregory Bull)

WASHINGTON (CN) — The U.S. Supreme Court sided with the Justice Department Thursday in a dispute over burden of proof for a request to cancel an undocumented immigrant’s removal. 

The 5-3 ruling comes in the case of Clemente Pereida, who is facing deportation after coming to the United States illegally 25 years ago. He sought to remain in the country by arguing his deportation would harm his son, who is a U.S. citizen.

“Before the immigration judge, [Pereida] refused to produce any evidence about his crime of conviction even after the government introduced evidence suggesting that he was convicted under a statute setting forth some crimes involving fraud,” Justice Neal Gorsuch wrote for the majority. 

“These choices may be the product of sound strategy, especially if further evidence would serve only to show that Mr. Pereida’s crime of conviction did involve fraud,” Gorsuch added. “But whatever degree of ambiguity remains about the nature of Mr. Pereida’s conviction, and whatever the reason for it, one thing remains stubbornly evident: He has not carried his burden of showing that he was not convicted of a crime involving moral turpitude.”

An immigration judge denied Pereida’s request to cancel his removal proceedings, citing his misdemeanor conviction for using a fraudulent Social Security card to get a job in Nebraska. Pereida pleaded no contest to the charge and did not serve jail time.

The judge concluded the conviction prevented Pereida from trying to cancel his removal proceedings because it constituted a crime of “moral turpitude.” Under the Immigration and Nationality Act, nonpermanent residents cannot have their removal proceedings canceled if they have been convicted of such a crime.

The Board of Immigration Appeals upheld the decision, though it noted not every subsection of the law under which Pereida was convicted qualifies as a crime of moral turpitude and it is not clear from the record of his case which subsection his conviction fell under.

The board ultimately ruled that Pereida was not eligible for relief from deportation because it was his burden to show the crime did not qualify as one of moral turpitude.

The Eighth Circuit denied Pereida’s petition to review the board’s determination. He appealed to the U.S. Supreme Court, and the justices heard arguments in October.

In Thursday’s opinion, Gorsuch shot down Pereida’s argument that the incomplete record should work in his favor. He instead noted Pereida’s immigration proceedings happened alongside his criminal case, which should have given him plenty of chances to provide details about his conviction with help from his counsel. 

“It is hard to imagine how he could have been on better notice about the need to obtain and preserve relevant state court records about his crime. Repre­sented by counsel in both proceedings, he had professional help with these tasks too,” the majority opinion states.

Gorsuch added, “De­spite all this, Mr. Pereida simply declined to insist on clar­ity in his state court records or supply further evidence.”

But in a dissenting opinion, Justice Stephen Breyer, joined by Justices Sonia Sotomayor and Elena Kagan, argued the majority should have taken the missing information more seriously. He said the immigration court’s categorical approach limits the record that can be used to determine the nature of the crime and the deportability of the defendant.  

“Unless those documents show that the crime of conviction necessarily falls within a certain category (here a ‘crime involving moral turpitude’), the judge must find that the conviction was not for such a crime,” Breyer wrote. “The relevant documents in this case do not show that the previous conviction at issue necessarily was for a crime involving moral turpitude. Hence, applying the categorical approach, it was not. That should be the end of the case.” (Parentheses in original.)

Gorsuch was joined in the majority by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito and Brett Kavanaugh.

Justice Amy Coney Barrett, the court’s newest member, took no part in the consideration or decision of the case. 

Pereida’s lawyer, Brian Goldman with the San Francisco-based firm Orrick, Herrington & Sutcliffe, said the majority’s ruling “retreats from a century’s worth of precedent on the immigration consequences of past criminal convictions.”

“This results in an injustice to Mr. Pereida, who’s lived and worked in the United States for over 25 years and raised his children here,” Goldman said in an emailed statement. “And many other noncitizens in similar positions may now have to prove the unprovable about old, minor convictions just to ask for humanitarian relief from removal. Justice Breyer’s dissent said it best – this decision is likely to ‘make the administration of immigration law less fair and less predictable.’”

A spokesperson for the Department of Justice said in an email the agency did not have a comment on the ruling.

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