Supreme Court Decides Cancellation of Removal Case, Pereida v. Wilkinson

In Pereida v. Wilkinson, the Supreme Court held 5-3 that a nonpermanent resident seeking to cancel a lawful removal order fails to carry his burden of showing that he has not been convicted of a disqualifying offense when the statutory conviction on his record is ambiguous regarding whether a disqualifying offense formed the basis of his conviction. For SCOTUSBlog documents and commentary on the case, click here.

Justice Gorsuch write the opinion for the Court.  Chief Justice Roberts and Justice Thomas, Alito, and Kavanaugh joined the opinion.  Justice Breyer dissented in an opinion joined by Justices Sotomayor and Kagan.  Justice Barrett took no part in the consideration or decision of the case.

Justice Gorsuch begins the majority opinion as follows:

“Everyone agrees that Clemente Avelino Pereida entered this country unlawfully, and that the government has se-cured a lawful order directing his removal. The only remaining question is whether Mr. Pereida can prove his eligibility for discretionary relief.Under the Immigration and Nationality Act (INA), individuals seeking relief from a lawful removal order shoulder a heavy burden. Among other things, those in Mr. Pereida’s shoes must prove that they have not been convicted of a “crime involving moral turpitude.” Here, Mr. Pereida admits he has a recent conviction [criminal impersonation] , but declines to identify the crime. As a result, Mr. Pereida contends, no one can be sure whether his crime involved “moral turpitude” and, thanks to this ambiguity, he remains eligible for relief. Like the Eighth Circuit, we must reject Mr. Pereida’s argument. 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.”

Justice Breyer’s dissent offers the gist of his dissent in this paragraph:

“This case, in my view, has little or nothing to do with bur-dens of proof. It concerns the application of what we have called the “categorical approach” to determine the nature of a crime that a noncitizen (or defendant) was previously convicted of committing. That approach sometimes allows a judge to look at, and to look only at, certain specified documents. Unless those documents show that the crime of conviction necessarily falls within a certain category (here a“crime involving moral turpitude”), the judge must find that the conviction was not for such a crime. The relevant documents in this case do not show that the previous conviction at issue necessarily was for a crime involving moral turpitude. Hence, applying the categorical approach, it was not.That should be the end of the case.”

Analysis of the decision will be posted as updates to this post.

KJ

UPDATE March 4, 2 p.m.: Kate Evans offers a short and sweet summary of the opinion on SCOTUSBlog.  A fuler analysis will follow.