By Kate Evans
on March 4, 2021
at 12:51 p.m.
The Supreme Court on Thursday issued an opinion in the Pereida v Wilkinson case, asking whether an immigrant living in the country without a permit can seek relief from deportation for a minor crime. The court ruled 5-3 that because the non-citizen bears the burden of proving that he is entitled to relief, he cannot bear that burden if his criminal record is unclear whether he has been convicted of a crime involving him from relief excludes. Judge Neil Gorsuch wrote the opinion for the court. Judge Stephen Breyer wrote a dissent, which was followed by Judges Sonia Sotomayor and Elena Kagan. Judge Amy Coney Barrett was not involved in the case as the hearing took place before she entered the court.
Clemente Pereida entered the United States almost 25 years ago without a permit. He and his wife have three children, one of whom is a US citizen and one of whom is a DACA (Deferred Action for Childhood Arrivals) program. In order to get a job with a cleaning company, Pereida allegedly presented a false social security card. He was subsequently convicted of an offense for attempting to commit the crime in Nebraska known as “criminal impersonation.” Pereida was sentenced to a $ 100 fine with no prison sentence.
Immigrants, such as Pereida, who have a long history in the United States and are close US citizens or legal permanent family members, can apply for a benefit that cancels their deportation due to the hardship of these relatives. However, this benefit is not available to non-immigrant persons convicted of a “crime of moral injustice” under Section 240A (b) (1) (C) of the Immigration and Citizenship Act. Nebraska’s criminal impersonation law contains several different offenses. Those versions that require the intent to deceive are classified as crimes with moral rejection under federal law and trigger immigration consequences. The other versions don’t. However, Pereida’s criminal record does not make it clear which version of the crime he was convicted of.
The government argued that the legal burden of proof on the immigrant seeking relief applies to the disqualification provision. Since Pereida could not prove that he had not been convicted of a crime of moral injustice, he was not entitled to relief. As a result, an immigration judge could not take into account the difficulties his deportation would pose for his or her US citizen child. Pereida argued that this rule violated the court’s precedent on how to determine whether state criminal convictions under federal law trigger immigration consequences.
The court ruled that the question of which offense included a prior conviction in a divisible law is factual. “And where, as here, the alien bears the burden of proof and has been sentenced under a divisible law that contains some crimes that are considered crimes of moral injustice, the alien must prove that his actual, historical offense against the conviction is not among them. Gorsuch wrote. Gorsuch acknowledged that if court documents are incomplete or unavailable, regardless of the difficulties immigrants may face in other cases, there may be record-keeping problems that would make it difficult to bear the burden.[i]It is hardly the place of this court to vote among competing political arguments such as these in order to select the outcome that appears to us the most congenial, efficient, or fairest. “
Check back soon for an in-depth analysis of the opinion.