The Trump administration urged the Supreme Court to leave in place a deportation order against an illegal alien from Mexico who was convicted of fraudulently using a Social Security card to gain employment, an argument that was met with skepticism by some justices.
The case is an appeal from the 8th Circuit Court of Appeals, which sided with the federal government. If the high court rules in favor of the would-be deportee in the highly technical case, it could invite more legal challenges to the administration’s efforts to deport illegal aliens convicted of offenses.
Eight justices, instead of the usual nine, heard oral arguments telephonically on Oct. 13, in the case known as Pereida v. Barr.
The Supreme Court bench has only eight members because Justice Ruth Bader Ginsburg died Sept. 18. Confirmation hearings for Judge Amy Coney Barrett of the 7th Circuit Court of Appeals, whom President Donald Trump nominated to succeed her, had her last day of hearings before the Senate Judiciary Committee on Oct. 14.
Clemente Avelino Pereida, a married Mexican citizen now with three children, who illegally entered the United States in 1995, was convicted 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. But to qualify for 42B cancellation, the applicant has to show he has been a person of good moral character, hasn’t been convicted of an offense that would make him inadmissible or removable, and that deporting him would result in what the law calls “exceptional and extremely unusual hardship” to a qualifying relative.
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 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 isn’t 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 didn’t deal with moral turpitude. And it was, the tribunals have found, Pereida’s legal responsibility to demonstrate that he wasn’t convicted of any offense involving moral turpitude.
Be that as it may, the government told the Supreme Court that Pereida failed to meet the relevant legal burden.
The petitioner “acknowledges in his reply and again this morning, his burden includes showing that he does not have a disqualifying conviction. Petitioner has not carried that burden, so he is ineligible for cancellation,” lawyer Jonathan C. Bond from the U.S. solicitor general’s office said.
Pereida “pleaded guilty to violating a statute that covers multiple crimes, some of which are disqualifying,” Bond said. “It thus was his burden to show that he was convicted of a non-disqualifying crime under that statute. ... If the record of conviction is inconclusive, the party with the burden has not carried it.”
Bond repeated that reasoning when responding to a question from Justice Stephen Breyer.
“So in this case, when the alien puts in his description of his criminal record and it’s clear that he may have a disqualifying conviction, the regulation is clear that he then bears the burden of showing that it does not apply,” Bond said.
In response, Justice Sonia Sotomayor told Bond that the burden of proof on Pereida isn’t high, saying it is “only by a preponderance of the evidence ... a very low standard ... it’s 51 percent.”
Justice Neil Gorsuch suggested to Bond that there are “a great many misdemeanor crimes across the country” in which defendants may not be able to easily discern if they have been convicted of an offense involving moral turpitude.
In the case at hand, Pereida “wasn’t using a Social Security card to defraud anybody of anything, but just to get a job,” Gorsuch said.
Justice Brett Kavanaugh suggested deportation would be unfair.
Pereida “has lived here for 25 years in the United States, has a wife and three kids here, one of whom is a U.S. citizen, works construction and cleaning, had a fraudulent Social Security number, which got him a $100 fine but no jail time under state law,” Kavanaugh said.
“That seems a thin reed [on which to rely] to make someone categorically ineligible for cancellation of removal.”