SCOTUS Opinion: Immigrants Bear Burden Of Proving Eligibility For Discretionary Relief From Removal

The Immigration and Nationality Act allows immigrants facing an order of removal to petition for discretionary relief from that removal. To be eligible for that relief, an immigrant must show that they have not been convicted of a “crime of moral turpitude.” In Pereida v. Wilkinson, an immigrant facing such a removal order was convicted under Nebraska law for “attempted criminal impersonation,” a crime proven when a person commits a crime of moral turpitude, but also for other reasons not related to moral turpitude, such as doing business without a required license. Mr. Pereida argued that since it was not clear in the record which avenue he was convicted under, it was not established that he was convicted of a crime of moral turpitude that deprived him of discretionary relief. The Board of Immigration Appeals and the Eighth Circuit disagreed, holding that it was Mr. Pereida’s burden to prove that he had only been convicted for reasons not related to moral turpitude.

The Court, in a 5-3 opinion by Justice Gorsuch (Justice Barrett recused), cleared up a circuit split on that question and affirmed, holding that it was Mr. Pereida’s burden to eliminate the “lingering uncertainty” about the issue, and not rely on it. The majority further noted that Mr. Pereida “refused to produce any evidence about his crime of conviction even after the government introduced evidence suggesting that he was convicted” for fraud under the Nebraska statute. Thus, he had not carried his burden. The dissent, drafted by Justice Breyer and joined by Justices Sotomayor and Kagan, insisted that the “categorical approach” to analyzing criminal statutes should determine that the crime Mr. Pereida was convicted of was not one of moral turpitude.

A link to the opinion is here: