SCOTUS Confirms Illegal Aliens Bear Burden of Proof When Seeking Cancellation of Removal

By Robert Law on March 6, 2021

The Supreme Court issued its first major immigration decision during the Biden administration in Pereida v. Wilkinson, and the verdict is a resounding victory for the rule of law. At issue was whether the U.S. government or the illegal alien bears the burden of proof for determining eligibility for discretionary relief from deportation, known as cancellation of removal. In a 5-3 ruling, the high court found that the Immigration and Nationality Act (INA) "squarely places" the burden of proof on the illegal alien to demonstrate eligibility for deportation relief. Justice Barrett abstained because she had not been confirmed when the case was argued before the Supreme Court.

Through section 240A(b) of the INA, Congress has afforded certain illegal aliens a narrow path to avoid being deported and actually receive a green card (lawful permanent residence). To be eligible for cancellation of removal, an illegal alien must (1) be physically present in the U.S. for at least 10 years; (2) be a person of good moral character; (3) not been convicted of certain criminal offenses; and (4) the illegal alien's removal would impose an "exceptional and extremely unusual" hardship to the illegal alien's spouse, parent, or child who is either a U.S. citizen or a lawful permanent resident. Satisfying these four prongs does not entitle the illegal alien to cancellation of removal; instead, it makes him or her eligible. In his discretion, the attorney general may grant cancellation of removal for an eligible illegal alien, but Congress limited the number of cancellations per year to 4,000.

Few facts of this case are in dispute. Clemente Avelino Pereida acknowledges that he is a citizen of Mexico and has unlawfully lived in the United States for approximately 25 years. In 2009, the Department of Homeland Security (DHS) issued Pereida a Notice to Appear charging him with removability because he was never lawfully admitted into the U.S. Before the immigration judge, Pereida did not contest his removability and sought cancellation of removal. Pereida is married with three children and due to the current misapplication of the 14th Amendment, the U.S.-born child is considered a U.S. citizen. Accordingly, both sides agree that Pereida meets the first, third, and fourth prongs of eligibility for cancellation of removal.

The wrinkle in the case is whether Pereida satisfies the second prong of eligibility for cancellation of removal — being a person of good moral character. As my colleague Art Arthur has observed, "good moral character" is defined in the negative, meaning this provision "generally identifies aliens who do not have good moral character." Under section 101(f) of the INA, offenses that preclude a finding of good moral character include habitual drunkards, those who have derived their income principally from illegal gambling activities, certain criminals, aliens who have given false testimony, aliens who have been confined as a result of convictions for 180 days or more, and aliens convicted of aggravated felonies, as well as Nazi persecutors, aliens who participated in genocide, those who have committed acts of torture or extrajudicial killings, and aliens who have committed severe violations of religious freedom. Importantly, this section of the INA includes a "catch-all clause", as well, which states: "The fact that any person is not within any of the foregoing classes shall not preclude a finding that for other reasons such person is or was not of good moral character." (Emphasis added.)

When held up to the good moral character standard, Pereida is another example of the myth of the otherwise law-abiding illegal alien. While in removal proceedings, Pereida's attorney informed the immigration judge that the state of Nebraska had charged Pereida with attempted criminal impersonation and the criminal case needed to be resolved before the immigration judge ruled on the request for cancellation of removal. Under the relevant Nebraska law, a person commits criminal impersonation if he:

(a) Assumes a false identity and does an act in his or her assumed character with intent to gain a pecuniary benefit ... or to deceive or harm another; "(b) Pretends to be a representative of some person or organization and does an act in his or her pretended capacity with the intent to gain a pecuniary benefit ... and to deceive or harm another; "(c) Carries on any profession, business, or any other occupation without a license, certificate, or other authorization required by law; or "(d) Without the authorization ... of another and with the intent to deceive or harm another: (i) Obtains or records ... personal identifying information; and (ii) Accesses or attempts to access the financial resources of another through the use of ... personal identifying information for the purpose of obtaining credit, money ... or any other thing of value.

Pereida was found guilty in the Nebraska criminal case.

Here is where things get interesting. Three of the four subsections of the Nebraska criminal statute involve fraud, which Pereida concedes would preclude a finding of good moral character. Subsection (c), however, operating a business without a proper license, does not necessarily have elements of fraud and might not preclude a finding of good moral character. Noting that Nebraska had charged Pereida with using a fraudulent Social Security card to obtain a job, the immigration judge concluded that Pereida's conviction was unlikely based on the improper business license subsection. Accordingly, the immigration judge ruled that the conviction was for a crime involving moral turpitude which means Pereida cannot establish good moral character and is ineligible for cancellation of removal.

Pereida appealed the decision to the Board of Immigration Appeals and then to the Eighth Circuit Court of Appeals. Both ruled against Pereida while observing that the record was unclear as to which subsection of the Nebraska law Pereida was convicted under. For his part, Peredia contributed to the confusion by refusing to produce any evidence about the specific nature of his conviction. Yet, because the illegal alien bears the burden of proving eligibility for cancellation of removal, both appellate courts found that the ambiguity in the record meant Pereida had not carried his burden of proof and, thus, was ineligible for cancellation of removal.

The case then made its way to the Supreme Court. In upholding the immigration judge's ruling, the Court's majority framed Pereida's position as accepting that he had the burden of proof for three of the four statutory requirements for cancellation of removal while claiming that the government had the burden of proof on whether the conviction was a disqualifying offense. Unpersuaded, the justices wrote "Mr. Pereida identifies nothing in the statutory text that singles out that lone requirement for special treatment. ... Mr. Pereida offers no account why a rational Congress would have placed this burden on an alien who is seeking admission, but lift it from an alien who has entered the country illegally and faces a lawful removal order." They continued, "Congress knows how to assign the government the burden of proving a disqualifying conviction. And Congress's decision to do so in some proceedings" but not in others, Justice Gorsuch wrote for the majority, "reflects its choice that these different processes warrant different treatment." Indeed, the plain language of section 240 of the INA, describing removal proceedings, makes clear that an alien seeking relief from removal has the burden of proof to show that he "satisfies the applicable eligibility requirements" and "merits a favorable exercise of discretion".

That a case as straightforward as this made it all the way to the Supreme Court is unusual. Nonetheless, the definitive ruling from the high court regarding the illegal alien's burden of proof when seeking cancellation of removal should prevent future illegal aliens from clogging the court system for nearly 12 years. It is now undisputed that Pereida should be removed from the country, but given the Biden administration's commitment to not enforcing immigration laws, this could be yet another mostly symbolic victory.