Fighting Deportation Will Be Harder After Supreme Court Decision Making Immigrants Prove No Crime of Moral Turpitude

March 4, 2021 Supreme Court holds that in cancellation of removal proceedings, the non-citizen's burden of proof extends to showing that a crime did not involve moral turpitude.

By , J.D.

** LEGAL UPDATE **

In a decision sure to cause alarm among every undocumented immigrant who has ever used a fake Social Security number to work in the United States, the Supreme Court recently upheld the deportation of a man who'd done just that, because he couldn't prove it wasn't a crime of moral turpitude.

The case is called Pereida v. Wilkinson. It involved a citizen of Mexico who had lived in the U.S. without lawful status for 25 years. He married and had children, one of whom is a U.S. citizen. In order to work in construction and as a janitor, he used a false Social Security number (SSN).

Immigration authorities arrested Mr. Pereida in 2009. In deportation proceedings, he requested a discretionary remedy known as cancellation of removal, by which someone who can prove that he or she meets the following criteria can be allowed to stay in the U.S. and receive a green card:

  • The person has been living ("continuously physically present") in the U.S. for at least ten years.
  • The person's removal ("deportation") from the U.S. would cause "exceptional and extremely unusual hardship" to qualifying relatives who are U.S. citizens or lawful permanent residents (LPRs).
  • The person can show "good moral character."
  • The person has not been convicted of certain crimes or violated certain laws, including crimes "involving moral turpitude."

(See 8 U.S.C. §§1182(a)(2)(A)(i)(I), 1227(a)(2)(A)(i), 1229b(b)(1)(C).)

While his immigration court proceedings were pending, Mr. Pereida was convicted of "criminal impersonation" under Nebraska state law, based on the false SSN. The government alleged that this was a crime involving moral turpitude (CIMT).

What is a CIMT? The term isn't one you're likely to see in an criminal statutes. It is a broad description, generally meaning crimes that are morally wrong or in violation of social norms. Many advocates argue that its meaning is unconstitutionally vague. This line of thinking did not, however, stop the Supreme Court from not only sanctioning Mr. Pereida's deportation, but agreeing that proving that the crime was not a CIMT was his responsibility or burden in court.

It has always been clear under the law that the non-citizen has the burden of proving that he merits discretionary relief, and has good moral character. But the issue here was whether, when the record of conviction is ambiguous, the non-citizen must additionally bear the burden of proving that the crime at issue was not a CIMT.

The Court assigned that burden to Mr. Pereida, saying, "Congress was entitled to conclude that uncertainty about an alien's prior conviction should not redound to his benefit."

Writing for the dissent, Justice Breyer said this decision would not only make the system "less fair" for immigrants, but would also add time and complexity to immigration court proceedings.

Effective Date: March 4, 2021