Due to the ambiguity in the record regarding the basis for Mr. Pereida’s conviction and his unwillingness to offer any competing evidence of his own, it was concluded that he failed the burden of proof.
Washington, D.C. – On March 4, 2021, the United States Supreme Court decided Pereida v. Wilkinson, in which the Court held that a nonpermanent resident seeking to cancel a lawful removal order must establish that he has not been convicted of a disqualifying offense, particularly when the statutory conviction on his record is ambiguous.
Under 8 U. S. C. § 240A(b) of the Immigration and Nationality Act (“INA”), nonpermanent residents may be eligible for Cancellation of Removal if they can establish before an Immigration Judge (“IJ”) that prior to being ordered removed, they:
- Have maintained continuous physical presence in the United States for 10 years or more;
- Have been a person of good moral character as defined in 8 U. S. C. § 101(f) during such period;
- Have not been convicted of an offense covered under 8 U. S. C. § 212(a)(2), 237(a)(2), or 237(a)(3); and
- If removed, their immediate family including a United States citizen or lawful permanent resident spouse, parent, or child, would experience “exceptional and extremely unusual” hardship.
Even if a nonpermanent resident meets all the above requirements, it is within the sole discretion of the Attorney General to choose whether to grant or withhold relief which is limited to no more than 4,000 removal orders that may be cancelled each fiscal year under 8 U. S. C. §1229b(e).
Such is disputed in the case of Clemente Avelino Pereida, a nonpermanent resident from Mexico, who entered and remained unlawfully in the United States. More than 10 years later, Mr. Pereida was charged with attempted criminal impersonation for using a fraudulent Social Security card to obtain employment in the state of Nebraska. The Department of Homeland Security (“DHS”) then charged him with removability under 8 U. S. C. § 235(b)(1) which renders any nonpermanent resident removable if they were never lawfully admitted to the United States. Rather than dispute his removability, Mr. Pereirda sought cancellation of removal.
At Mr. Pereida’s hearing before the Immigration Court, the IJ reviewed the separate crimes stated within the Nebraska statute including subsections (a), (b), and (d) which stated a crime involving fraud, and (c) which prohibited carrying on a business without a required license. Because Mr. Pereida had been charged for using a fraudulent Social Security card to obtain employment, the IJ concluded that Mr. Pereida’s conviction constituted a crime involving moral turpitude, deeming him ineligible for cancellation of removal under 8 U. S. C. §§1182(a)(2)(A)(i)(I), 1227(a)(2)(A)(i), 1229b(b)(1)(C).
On appeal, the Board of Immigration Appeals and then the Court of Appeals for the Eighth Circuit concluded that although nothing in the record established which crime Mr. Pereida stood convicted of, he bore the burden of proving his eligibility for Cancellation of Removal. Due to the ambiguity in the record regarding the basis for Mr. Pereida’s conviction and his unwillingness to offer any competing evidence of his own, it was concluded that Mr. Pereida failed to meet his burden and was therefore ineligible for discretionary relief.
In its review, the United States Supreme Court held that Mr. Pereida’s failure to prove that the basis of his conviction was not a crime involving moral turpitude meant he failed to meet his burden, citing 8 U.S.C. § 1229a(c)(4)(A) which states that “an alien applying for relief or protection from removal has the burden of proof to establish” that he “satisfies the applicable eligibility requirements.” Affirming the judgement of the Board of Immigration Appeals and Court of Appeals for the Eighth Circuit, the Court held that Mr. Pereida failed to carry this burden and was therefore ineligible for Cancellation of Removal.
Justice Stephen Breyer filed a dissent to this decision, in which Justices Sonia Sotomayor and Elena Kagan joined. Justice Breyer argued that the Court should apply the “categorical approach” to determine the nature of a crime that a nonpermanent resident was convicted of committing. This approach would require a judge to look only at certain specified documents, and unless those documents show the crime of conviction is a crime involving moral turpitude, the judge must find that the conviction was not such a crime. Following that approach, the result in this case would have found that Mr. Pereida was not convicted for a disqualifying crime and therefore eligible for Cancellation of Removal.
Justice Amy Coney Barrett took no part in the consideration or decision of this case.
Criminal charges like the one discussed in this case can gravely affect the immigration status of a nonimmigrant resident. If you have been charged with a crime and ordered removed, it is important that you find an attorney who will investigate, prepare, and argue your case with passion. Call The Law Office of Eric M. Mark for a free, 10-minute consultation today!