Originally Published in Slate
Alina Das and Nancy Morawetz - March 9, 2021
Over the last 25 years, even minor interactions between immigrants and the criminal legal system have become a pipeline for deportation. In its March 4 decision on Pereida v. Wilkinson, the Supreme Court’s conservative majority tightened the screws, making it more difficult for immigration judges to consider the hardship that families face when their loved ones are deported. The losers in this case are not only immigrants facing deportation for criminal contact and their families. Everyone loses when community members are deported.
Clemente Pereida, the immigrant at the center of the case, came to the United States from Mexico 26 years ago. He had no path to legal status and remained undocumented, though he worked in construction and cleaning, paid his taxes, and raised three children. In 2009, the federal government placed him in deportation proceedings, but he applied for “cancellation of removal” based on the “exceptional and extremely unusual hardship” that deportation would inflict on his youngest child, a U.S. citizen.
Then Pereida’s desire to support his family financially ran headlong into the criminal legal system. In 2010, he pleaded no contest to the misdemeanor of “attempted criminal impersonation” in Nebraska. The underlying criminal charge was commonplace—the use of a fake Social Security number to work as a janitor. For this offense, Nebraska punished him with a $100 fine.
The immigration consequences, under the Supreme Court’s new decision, are far worse. Immigrants who are convicted for a “crime involving moral turpitude”—a sweeping Jim Crow–era term that has never been defined in immigration law—are prohibited from contesting their deportation. Courts have interpreted “moral turpitude” to include certain fraud offenses. An immigrant with such a conviction on their record cannot avoid removal even if they demonstrate that getting deported would impose an extreme hardship on a U.S. citizen child. The Nebraska “criminal impersonation” statute covers some offenses that involve fraud and some that do not. Pereida’s conviction was ambiguous; the record did not specify whether he was convicted under one of the subsections of the statute involving fraud. The question for the Supreme Court was whether, in the face of that ambiguity, Pereida had necessarily been convicted of a “crime involving moral turpitude” and was thus barred from canceling his removal from the country.
Justice Neil Gorsuch’s majority opinion claimed that the question turned on who, exactly, shouldered the burden of proof. He held that the burden was on Pereida to prove that he had not been convicted under a “moral turpitude” section of the statute. Justice Stephen Breyer took the better, and more historically accurate, approach. He wrote that courts have, in the past, taken a “categorical approach” to deciding whether an offense qualifies as a “crime involving moral turpitude.” This approach requires courts to analyze the criminal statute, not the underlying offense. Put simply, courts look at the words of the law, not the facts of the case, to see if the crime in question involves “moral turpitude.” If the law is ambiguous—that is, if that offense doesn’t clearly involve moral turpitude—courts must assume it does not, and side with the immigrant.
As we wrote in an amicus brief on behalf of immigration law professors, the categorical approach was first adopted over a century ago and has been regularly applied in cases where the immigrant bore the burden of challenging their exclusion from the U.S. It was championed by the venerable Judge Learned Hand, who concluded that the minimum conduct of an offense is the touchstone. Courts, as well as immigration authorities, continued to apply the categorical approach for decades. There is every reason to think that Congress understood this history when it wrote the requirements for canceling a deportation.
The majority’s sharp departure from this history will have its most draconian consequences for those whose convictions are minor or decades-old. Here, the devil is in the missing details. As amicus briefs from immigrant defense and criminal defense organizations explained, there is little incentive for prosecutors to determine every detail of an offense, such as the underlying facts or precise subsection of the criminal statute at issue, if it has no impact on the outcome of the prosecution. The state is usually just interested in securing a conviction, and the defendant is rarely able to anticipate what detail will prove important in separate immigration proceedings that may happen decades later. This leaves immigrants powerless to prove, under Pereida, that their ambiguous convictions are not bars to relief. The court’s opinion blithely suggests that this is a policy concern for Congress to address. But that has the analysis backward. Congress had no way of anticipating that the current Supreme Court would jettison 100 years of case law on how to treat criminal conviction bars irrespective of burden in immigration law.
Pereida will no doubt raise many questions for courts as to its scope and limitations. But it should also raise questions for Congress as it debates immigration policies that would protect people from deportation and finally offer a meaningful and inclusive path to citizenship. Congress should bear in mind that any statute it writes will be interpreted by the new Supreme Court majority for years to come. The only real remedy is to avoid categorical bars to relief and allow cases to be evaluated on the merits.
With that in mind, Congress should carefully consider whether its proposals will keep families like the Pereidas whole. Immigrant rights groups who fought hard for the recent reintroduction of the Dream and Promise Act, for example, expressed dismay at its inclusion of criminal bars that will disproportionately block Black and Latinx immigrants from its protections. Even as our country has begun to reckon with the racial bias and disparities of the criminal legal system, we heap on the punishment of deportation without a second thought. Racism fueled the initial enactment of criminal grounds of exclusion and deportation. The continuing and expansive reliance on criminal records to decide who deserves family unity and protection from deportation continues to harm Black and Latinx communities today.
There is no hint of this larger context of racial justice in the majority decision in Pereida. Nor is there any acknowledgment of the horrifying disproportionality of separating Pereida from his wife and three children over a conviction deemed worthy of nothing more than a $100 fine. There is no recognition of the self-inflicted wound: that, based on a criminal conviction, federal immigration officials choose to exact an “extreme and exceptionally unusual hardship” on an American family. As Congress debates new paths to citizenship, it should keep the Pereida family at the forefront of their minds, and break from policies that further criminalize communities of color.