On March 4, 2021, the U.S. Supreme Court decided Pereida v. Wilkinson, holding that noncitizens who seek to cancel a lawful removal order have the burden of proving they have not been convicted of a disqualifying crime, even under circumstances where the record is ambiguous about whether the crime for which they were convicted was a disqualifying crime involving moral turpitude.
Clemente Pereida entered the United States without authorization in 1995. In 2009, the government attempted to remove him from the country. Pereida admitted that he was subject to removal but applied for cancellation of removal, a discretionary form of relief available under 8 U.S.C. § 1229b(b)(1). The government argued that Pereida was not entitled to this discretionary relief because he had been found guilty of violating Nebraska’s attempted criminal impersonation statute. The government argued this was a conviction for a crime involving moral turpitude, making Pereida ineligible for cancellation of removal.
The attempted criminal impersonation statute under which Pereida was charged and convicted defined four offenses, only three of which were crimes involving moral turpitude. During the removal proceedings, the government provided the immigration judge with a copy of the criminal complaint, which had charged Pereida with one of the offenses that involved a crime of moral turpitude. Pereida did not offer any competing evidence, and the immigration judge found Pereida was convicted of a disqualifying crime, thus rendering him ineligible for cancellation of removal. The Board of Immigration Appeals and the Eighth Circuit both observed that although the record showed which crime Pereida was charged with, the record was ambiguous as to the crime for which he was actually convicted. The question was whether this ambiguity should result in a ruling for the government or Pereida. The Eighth Circuit held that 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 Pereida “had not carried that burden, he was ineligible for discretionary relief.” Pereida appealed, and the Supreme Court granted certiorari to resolve a circuit split on this issue.
The Supreme Court affirmed the Eighth Circuit’s judgment in a 5–3 decision. The Court explained that § 1229a(c)(4)(A) clearly states that a noncitizen applying for cancellation of removal bears the burden of proving that he is eligible for that relief. Pereida argued that any ambiguity in the record should be decided in his favor under the categorical approach, which does not look at the facts of an individual’s conduct but asks “whether an individual’s crime of conviction necessarily — or categorically — triggers a particular consequence under federal law.” Pereida further argued that because Nebraska’s attempted criminal impersonation statute is divisible, the crime he was convicted of was not “necessarily” a crime involving moral turpitude, and it therefore should not disqualify him from seeking cancellation of removal. The Court disagreed. It reasoned that although “courts applying the categorical approach often presume that a conviction rests on nothing more than the minimum conduct required to secure a conviction” this does not answer the question of “which crime the defendant was convicted of committing.” Moreover, past Supreme Court decisions have described the question of “what crime the defendant was convicted of committing” as a question of fact. Pereida had not carried his evidentiary burden on that point — and the Court specifically noted that Pereida refused to offer evidence of his crime of conviction to the immigration judge and his counsel disclaimed interest in the possibility of remand to clarify that ambiguity.
Finally, the Court addressed Pereida’s argument that construing ambiguity in the government’s favor “would invite ‘grave practical difficulties,’” as a noncitizen’s record might be “unavailable or incomplete through no fault of his own.” Pereida had not suggested, however, that there were intractable recordkeeping problems in his case. The Court also pointed out that recordkeeping issues are not unique to the Immigration and Nationality Act (INA), and it was not the Court’s job “to pick and choose among competing policy arguments.” Notably, too, the INA “authorize[s] parties to introduce a much broader array of proof [in immigration proceedings] when it comes to prior convictions,” “ameliorat[ing] some of the record-keeping problems” raised by Pereida.
Justice Gorsuch wrote the opinion of the Court, joined by Chief Justice Roberts and Justices Thomas, Alito, and Kavanaugh. Justice Breyer filed a dissenting opinion, joined by Justices Sotomayor and Kagan. Justice Barrett took no part in the consideration or decision of this case.