The Supreme Court agreed last week to review a deportation order against an illegal alien convicted of fraudulently using a Social Security card to gain employment.
If the high court rules in favor of the would-be deportee in the unusual, highly technical case, cited as Pereida v. Barr, it could invite more legal challenges to the Trump administration’s efforts to deport illegal aliens convicted of offenses.
Clemente Avelino Pereida, a married Mexican citizen now with three children, who illegally entered the U.S. in 1995, was found guilty in Nebraska of attempted criminal impersonation, a misdemeanor offense, related to his fraudulent use of a Social Security card to gain employment, something illegal aliens are frequently accused of doing.
Immigration officials served Pereida with a notice to appear in 2009, alleging he was eligible for deportation. He conceded the allegations and that he was removable but in 2011 filed for what’s known as a 42B cancellation from removal.
“To establish eligibility for 42B cancellation, an applicant has to have been physically present in the United States for 10 years before filing the application, prove that he or she has been a person of good moral character during that period, establish that removal would result in ‘exceptional and extremely unusual hardship’ to a qualifying relative, and demonstrate that he or she has not been convicted of an offense under various enumerated grounds of inadmissibility and removability,” writes Andrew R. Arthur of the Center for Immigration Studies.
In 2014, the U.S. Department of Homeland Security asked an immigration judge to disregard Pereida’s application because, officials said, he had been convicted of a crime of moral turpitude. The judge agreed that using a Social Security card fraudulently was an offense that involved moral turpitude and threw out his request to have his removal stayed.
Moral turpitude is a legal term of art that describes “an act or behavior that gravely violates the sentiment or accepted standard of the community.” The term is used in deportation, disbarment, and disciplinary proceedings.
But, as judicial officers throughout the process discovered, it is not clear exactly which part of the Nebraska statute Pereida was convicted under. That’s important because it appears he may been convicted under a subsection of the law that did not deal with moral turpitude. And it was, the tribunals have found, Pereida’s legal responsibility to demonstrate that he was not convicted of any offense involving moral turpitude.
The Board of Immigration Appeals reviewed the immigration judge’s decision and found that the burden was on the would-be deportee to prove that his conviction did not involve moral turpitude and therefore did not make him ineligible for relief. The board ruled Pereida failed to meet this burden and the removal process could continue.
Pereida asked the 8th Circuit Court of Appeals to review the board’s ruling. The court ruled against him.
The appeals court found that the Nebraska statute under which he was convicted contained some offenses that involved moral turpitude and others that did not. But based on the inconclusive record before it, the court ruled it was impossible to determine whether a subsection of the law dealing with moral turpitude formed the basis for Pereida’s conviction.
“[B]ecause Pereida cannot establish that he was eligible for cancellation of removal, we uphold the Board’s determination that he has not shown such eligibility,” Judge C. Arlen Beam wrote for the appeals court.
The Department of Justice argued a similar point in the brief it filed with the Supreme Court.
“By assigning the burden to the alien, Congress ensured that aliens do not benefit from withholding available evidence that would shed light on which offense an alien was previously convicted of.”
The various circuit courts around the country disagree on what effect inconclusive records have in cases involving alien applicants seeking to establish their eligibility for immigration relief, Arthur writes, so the new case may allow the Supreme Court to clear up some of the confusion.