SCOTUS determines undocumented immigrants bear burden of proof when seeking deportation relief

The U.S. Supreme Court this week dealt a serious blow to progressives who seek to make it easier for undocumented immigrants to dodge deportation orders.

According to reports, the nation’s highest court ruled 5-3 that the burden of proof rests on the subjects of such decisions to prove in court that they are eligible to have a removal order canceled.

“A crime involving moral turpitude”

In a majority opinion joined by Chief Justice John Roberts and Associate Justices Samuel Alito, Brett Kavanaugh, and Clarence Thomas, Justice Neal Gorsuch cited prior immigration law in arriving at the determination.

A dissenting opinion was authored by Justice Stephen Breyer and joined by Justices Elena Kagen and Sonia Sotomayor. Justice Amy Coney Barrett, who was not on the bench at the time the case was argued in October, recused herself.

At issue in the case was the order of removal against Clemente Pereida, a Mexican citizen who had been living in the United States for 25 years with his wife and children but was recently convicted in Nebraska of using a fraudulent Social Security number to gain employment.

Pereida sought relief from the order, though a key component of eligibility is being able to prove, among other things, that he was not “convicted of a crime involving moral turpitude.”

A difference of legal opinion arose out of ambiguity in the record regarding exactly what laws he had been convicted of violating. Specifically, the statute under which he was found guilty included at least four separate crimes, not all of which involve “moral turpitude.”

“Mr. Pereida has offered no account”

In the prevailing opinion, Gorsuch wrote that the Immigration and Nationality Act “expressly requires individuals seeking relief from lawful removal orders to provide all aspects of their eligibility,” including proof that “they do not stand convicted of a disqualifying criminal offense.”

He went on to point out that several provisions within that act leave no doubt that it is the undocumented immigrant and not the federal government who must shoulder the burden of proof in making the argument that relief from a removal order is warranted.

“In this context, it is undisputed that an alien has the burden of proving that he has not committed a crime of moral turpitude,” Gorsuch wrote. “And Mr. Pereida has offered no account why a rational Congress might wish to place this burden on an alien seeking admission to this country, yet lift it from an alien who has entered the country illegally and is petitioning for relief from a lawful removal order.”

In the end, the majority determined that “whatever degree of ambiguity remains about the nature of Mr. Pereida’s conviction, and whatever the reason for it, one thing remains stubbornly evident: He has not carried his burden of showing that he was not convicted of a crime involving moral turpitude.”

Of course, the ruling was opposed by many Americans beyond the three dissenting justices, including law professor and Obama-era senior counselor to the Homeland Security secretary Lucas Guttentag, who complained that the decision created a “one-way street” that will pave the way for other undocumented immigrants to be deported on the basis of arguably minor criminal offenses.

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