WASHINGTON (CN) — The Justice Department argued in a virtual Supreme Court hearing Wednesday that the burden of proof for a request to cancel an undocumented immigrant’s removal lies with the person facing deportation, not the government.
“The courts should start with the governing statutory texts and here that text answers the question by putting the burden of proving eligibility on the alien, including a lack of disqualifying convictions,” Assistant to the Solicitor General Jonathan C. Bond said in the hour-long hearing.
Facing deportation after coming to the United States illegally 25 years ago, Clemente Pereida sought to remain in the country by arguing his deportation would harm his son, who is a U.S. citizen.
An immigration judge denied his request to cancel his removal proceedings, citing Pereida’s 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 agreed to hear the dispute late last year.
Much of Wednesday’s hearing focused on the ability of an undocumented immigrant to produce documents related to the nature of a low-level conviction that could block efforts to stop deportation. Known as Shepard documents, named after a 1933 Supreme Court case, they can include plea or charging details and have long been used to determine the details of prosecutions affecting deportations based on crimes of moral turpitude.
But when those documents are lacking, as is the case for Pereida, the ambiguity becomes the issue.
“You’ve shown them what you’re convicted of, and there’s one crime of moral turpitude that doesn’t apply, under case law, that ambiguity goes to your favor?” asked Justice Sonia Sotomayor, a Barack Obama appointee.
“Yes. This is a conviction under an overbroad statute so we can presume it is not disqualifying until and unless the record of conviction necessarily establishes otherwise, and here it does not,” said Pereida’s attorney, Brian Goldman with the San Francisco-based firm Orrick, Herrington & Sutcliffe.
Justice Brett Kavanaugh, a Donald Trump appointee, expressed doubt at the government’s argument that the burden of proof falls on the immigrant.
He pointed to Pereida’s 25-year-history in the U.S., along with the immigrant's own defense - he used a fake Social Security card to get a job, rather than stealing or committing something more grave - as a “thin reed to make someone categorically eligible for cancelation of removal.”
“The thin reed corresponds legally to having such an offense that the records are going to be thin as well,” Kavanaugh said. “How should we think about that?”
“We’re only dealing with aliens who were found removable and are seeking special dispensation which amounts to a pardon,” Bond argued before Kavanaugh interrupted.
“You could still deny cancellation of removal,” the judge said, noting the executive branch still has top authority to move forward with a deportation. “It’s just taking away the argument that someone in this situation, for that long with this kind of offense, is categorically ineligible.”
“I think it contradicts Congress' judgment,” Bond replied. “Congress wanted these [deportations] to be taken seriously.”
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