US Supreme Court: Non Permanent Residents Must Show They Were Not Convicted Of A Crime Of Moral Turpitude in Immigration Removal Proceedings

Pereida v. Wilkinson (U.S., Mar. 4, 2021, No. 19-438) 2021 WL 816351, at *1–2

Summary:Immigration officials initiated removal proceedings against Clemente Avelino Pereida for entering and remaining in the country unlawfully. Mr. Pereida sought  to establish his eligibility for cancellation of removal under the Immigration and Nationality Act (INA). 8 U.S.C. §§ 1229a(c)(4), 1229b(b)(1). Nonpermanent residents must prove that they have not been convicted of specified criminal offenses. § 1229b(b)(1)(C) for eligibility. Mr. Pereida was convicted of a crime under Nebraska state law. See Neb. Rev. Stat. § 28–608 (2008). Analyzing whether Mr. Pereida’s conviction constituted a “crime involving moral turpitude” that would bar his eligibility for cancellation of removal, §§ 1182(a)(2)(A)(i)(I), 1227(a)(2)(A)(i), the immigration judge found that the Nebraska statute stated several separate crimes, some of which involved moral turpitude and one—carrying on a business without a required license—which did not. Nebraska had charged Mr. Pereida with using a fraudulent social security card to obtain employment, so the immigration judge concluded that Mr. Pereida’s conviction was likely not for the crime of operating an unlicensed business, and the conviction likely constituted a crime involving moral turpitude. The Board of Immigration Appeals and the Eighth Circuit concluded that the record did not establish which crime Mr. Pereida stood convicted of violating. Mr. Pereida bore the burden of proving his eligibility for cancellation of removal and the ambiguity in the record meant he had not carried that burden and he was  ineligible for discretionary relief.

Holding: Under the INA, certain nonpermanent residents seeking to cancel a lawful removal order bear the burden of showing they have not been convicted of a disqualifying offense. A nonpermanent resident has not carried that burden when the record shows he has been convicted under a statute listing multiple offenses, some of which are disqualifying, and the record is ambiguous as to which crime formed the basis of his conviction.

INA places burden of proof on nonpermanent residents to prove eligibility for relief

The INA  places the burden of proof on the nonpermanent residents to prove eligibility for relief from removal. § 1229a(c)(4)(A). The INA specifies particular forms of evidence that “shall constitute proof of a criminal conviction” in “any proceeding under this chapter,” regardless of whether the proceedings involve efforts by the government to remove an alien or efforts by the alien to establish eligibility for relief. § 1229a(c)(3)(B). Congress knows how to impose the burden on the government to show that a nonpermanent resident  has committed a crime of moral turpitude, see §§ 1229a(c)(3), 1227(a)(2)(A)(i). Here, it chose to flip the burden when it comes to applications for relief from removal. The INA often requires a nonpermanent residents seeking admission to show “clearly and beyond doubt” that he is “entitled to be admitted and is not inadmissible,” § 1229a(c)(2), which in turn requires the nonpermanent residents to demonstrate that he has not committed a crime involving moral turpitude, § 1182(a)(2)(A)(i)(I). This burden is placed on an alien who is seeking admission, and there is no reason to life it from a non permanent resident who has entered the country illegally and faces a lawful removal order.

What if nonpermanent resident has no records of criminal conviction?

Here, there was no issue of lack of records of the criminal conviction. Mr. Pereida’s immigration proceedings took place along with his criminal case. He was represented by counsel in both cases.  professional help with these tasks too.

Mr. Pereida and the dissent say fairness and efficiency would be better served if the government bore the risk of loss associated with record-keeping difficulties. The government contends that it is important for the burden of proof to rest with the nonpermanent resident so those seeking discretionary relief cannot gain a tactical advantage by withholding or concealing evidence they possess about their own convictions. The Court declined to take  a policy position. Congress was entitled to conclude that uncertainty about an alien’s prior conviction should not redound to his benefit.