Undocumented immigrant has burden of proof to challenge deportation order, Supreme Court rules

Undocumented immigrant has burden of proof to challenge deportation order, Supreme Court rules

Originally Published in CNN

Ariane de Vogue - March 4, 2021

The Supreme Court ruled against an undocumented immigrant on Thursday who has been living in the United States for more than 25 years but faces deportation because of a misdemeanor conviction in state court.

In a 5-3 opinion, penned by Justice Neil Gorsuch, the court held that Clemente Pereida, who was born and raised in Mexico but came to the United States illegally in 1995, bears the burden under immigration law to prove that he is eligible to have his deportation canceled.

Federal law, Gorsuch wrote, "expressly requires individuals seeking relief from lawful removal orders to prove all aspects of their eligibility."

The court's opinion will make it more difficult for some undocumented immigrants who have lived a substantial time in the United States to challenge deportation orders, especially because they are often poor and unable to afford counsel.

Pereida was convicted in November 2009 of using another person's Social Security card, a misdemeanor, and his conviction led the Department of Homeland Security to issue a deportation order. Pereida applied to have his deportation canceled but was denied by an immigration judge who ruled that his underlying crime involved "moral turpitude."

The US attorney general has the discretion to cancel an order of removal unless the individual has been convicted of a crime involving "moral turpitude."

Pereida's lawyers appealed the decision to the Supreme Court, arguing that there is ambiguity on whether his crime did in fact involve "moral turpitude" and because of that, he should not be deported.

The court disagreed on Thursday, holding that Pereida must prove that he does "not stand convicted of a disqualifying criminal offense."

Justice Stephen Breyer, joined by his liberal colleagues Sonia Sotomayor and Elena Kagan, dissented.

Breyer noted that Pereida has been in the states for "roughly 25 years" and has raised three children with his wife. He said that the majority's decision "risks hinging noncitizens' eligibility for relief from removal on the varied charging practices of state prosecutors."

Justice Amy Coney Barrett did not participate in the decision because she was not yet on the court when the case was argued.

 

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