The Supreme Court left in place a deportation order against an illegal alien from Mexico who was convicted of fraudulently using a Social Security card to gain employment, because he failed to establish he was entitled to relief from removal.
Justice Neil Gorsuch wrote the majority opinion, upholding a decision by the 8th Circuit Court of Appeals. The three liberal justices all dissented.
The Supreme Court bench had only eight members when oral arguments were heard telephonically on Oct. 13, 2020, because Justice Ruth Bader Ginsburg had died the month before. Justice Amy Coney Barrett, who didn’t participate in the decision, hadn’t yet been confirmed.
Clemente Avelino Pereida, a married Mexican citizen now with three children who illegally entered the United States in 1995, was convicted in Nebraska of attempted criminal impersonation, a misdemeanor offense, for fraudulently using a Social Security card to gain employment, something illegal aliens are frequently accused of doing.
Immigration officials formally alleged that Pereida was eligible for deportation. He conceded the allegations and his removability but, in 2011, filed for what’s known as a 42B cancellation from removal.
But to qualify for it, the applicant has to establish four things. He must show the attorney general that he has been present in the United States for at least 10 years, has been a person of good moral character, hasn’t been convicted of an offense that would make him inadmissible or removable, and that deporting him would result in what the law calls “exceptional and extremely unusual hardship” to a close relative who is either a U.S. citizen or a permanent resident.
In 2014, the government asked an immigration judge to reject Pereida’s application because, officials said, he had been convicted of a crime of moral turpitude. The judge agreed that using a Social Security card fraudulently was an offense that involved moral turpitude and threw out his request to have his removal stayed.
Moral turpitude is a legal term that describes “an act or behavior that gravely violates the sentiment or accepted standard of the community.” The term is used in deportation, disbarment, and disciplinary proceedings.
But, as judicial officers throughout the process discovered, it wasn’t exactly clear which part of the Nebraska statute Pereida was convicted under. That was important, Pereida argued, because he may have been convicted under a subsection of the law that didn’t deal with moral turpitude. And it was, the tribunals have found, Pereida’s legal responsibility to demonstrate that he wasn’t convicted of any offense involving moral turpitude.
Under the Immigration and Nationality Act (INA), “certain nonpermanent aliens seeking to cancel a lawful removal order must prove that they have not been convicted of a disqualifying crime,” Gorsuch wrote for the court.
“Record-keeping problems promise to occur from time to time, regardless who bears the burden of proof,” Gorsuch wrote. “And, as in most cases that come our way, both sides can offer strong policy arguments to support their positions.”
The fact that the court records were unclear as to a moral turpitude-related conviction doesn’t work in Pereida’s favor, the Supreme Court ruled, finding that in such circumstances a person isn’t entitled to the benefit of a doubt.
“Any lingering uncertainty about whether Mr. Pereida stands convicted of a crime of moral turpitude would appear enough to defeat his application for relief, exactly as” the lower courts held, the justice wrote.
Convincing the attorney general regarding the four criteria is only the beginning of the relief process.
“Establishing all this still yields no guarantees; it only renders an alien eligible to have his removal order canceled,” Gorsuch wrote, noting that Congress allows the attorney general to cancel no more than 4,000 removal orders each year.
“The INA expressly requires individuals seeking relief from lawful removal orders to prove all aspects of their eligibility. That includes proving they do not stand convicted of a disqualifying criminal offense,” the justice wrote.
“Mr. Pereida bore the burden of proving his eligibility for relief, so it was up to him to show that his crime of conviction did not involve moral turpitude. Because Mr. Pereida had not carried that burden, he was ineligible for discretionary relief all the same.”
Justice Stephen Breyer wrote a dissenting opinion, which Justices Sonia Sotomayor and Elena Kagan joined.
Breyer wrote that a “categorical approach” in which the immigration judge looks at elements of the statutory offense would have yielded a better result in this case.
“Immigration judges and sentencing judges have limited time and limited access to information about prior convictions,” the justice wrote. “The vast majority of prior convictions reflect simple guilty pleas to the crime charged, and, where the record papers are silent, efforts to uncover which of several crimes was ‘really’ at issue can force litigation that the guilty plea avoided.”
