On March 4, 2021, the US Supreme Court issued its decision in Pereida v. Wilkinson. The conservative Court bucked the Biden administration´s trend of liberalizing immigration law, by making it harder for undocumented immigrants convicted of minor criminal offenses to obtain relief from deportation proceedings.

Pereida was seeking “cancellation of removal” under US immigration law. Under cancellation of removal, a non-citizen, who is not a lawful permanent resident can seek the cancellation of any removal (deportation) proceedings against them and gain lawful permanent residence in the United States, if they meet certain conditions:

Requirements for Cancellation of Removal

To obtain the cancellation of removal, nonpermanent residents must establish that they:

  • Have accrued at least 10 continuous years of physical presence in the United States,
  • Can demonstrate good moral character during their period of physical presence,
  • Have not been convicted of a “crime of moral turpitude”, and
  • Can prove that their deportation would cause “exceptional and extremely unusual hardship” to at least one family member who is either a US citizen or a lawful permanent resident.

Essentially, cancellation of removal works a lot like an immigration amnesty, except that it is very difficult to obtain and it is awarded on a case-by-case basis. Ultimately, the decision is based on the discretion of the immigration court and is based on the totality of the circumstances. If the court refuses an application for cancellation of removal, it is difficult to successfully appeal the decision. Nevertheless, appeals are sometimes granted.

The Legal Nuts and Bolts: “Moral Turpitude” and “Intent to Deceive”

Cancellation of removal is based on highly ambiguous legal terms such as “exceptional and extremely unusual hardship” and ”crime of moral turpitude.” In Pereida, the issue was whether a crime on Pereida´s record, “criminal impersonation” (a Nebraska state law crime) constituted a “crime of moral turpitude.”

A crime of moral turpitude means a crime that was committed with some sort of evil intent. Swindling someone out of their money, for example, might constitute a crime of moral turpitude, whereas driving on an expedited driver”s license might not be.

Pereida”s Actions

Pereida”s offense was to present a fake Social Security card in order to obtain employment. The crime was certainly minor if judged by the penalty imposed–a $100 fine and no jail time. The issue, however, was whether presenting a fake Social Security card constituted a “crime of moral turpitude.”

The ambiguity here lies in the fact that the Nebraska state law Pereida was convicted of includes several distinct offenses. Some of these offenses require the defendant to have an “intent to deceive* to be guilty, while other offenses that are also called criminal impersonation” do not require an intent to deceive.

Pereida’s criminal record did not indicate whether or not his conviction required a finding of an intent to deceive. This is critical because under US immigration law, a criminal offense that requires a finding that the defendant had an “intent to deceive” counts as a crime of moral turpitude, and would thereby result in a denial of Pereida’s application.

The Supreme Court ruled that the party seeking relief from deportation bears the burden of proving that they are eligible for that relief. Since Pereida’s criminal record did not indicate whether intent to deceive was a necessary element of the crime, there was no way for Pereida to meet this burden. Consequently, Pereida lost his appeal and his application for cancellation of removal was denied.

A Disturbing Precedent

Because this case was decided by the highest court in the land, it sets a precedent for future cases that can only be overturned by the Supreme Court itself. Even the Supreme Court is unlikely to overturn its precedent, however, unless its composition changes significantly. In the future, then, this case establishes a rule that the immigrant bears the burden of proving that the crime they were convicted of does not constitute a crime of moral turpitude. In many cases, especially with state law charges, this is likely to prove an impossible task.

The Court’s decision, however, can be effectively reversed without waiting for the Supreme Court to overturn its own precedent. Since the decision was based on the Supreme Court’s interpretation of a federal statute (the Immigration and Nationality Act), Congress can evade Pereida v. Wilkinson by simply changing the wording of the statute. Until then, immigrants with criminal records are going to face a much more difficult time obtaining the cancellation of removal.

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