September 27, 2021

Volume XI, Number 270

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September 24, 2021

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Noncitizen Bears Burden of Proof When Challenging Deportation, U.S. Supreme Court Rules

A noncitizen applying for relief from deportation bears the burden of proving all elements of eligibility for relief, including that a conviction under a divisible state statute does not render the person ineligible for relief, the U.S. Supreme Court has ruled in a 5-3 opinion (Justice Amy Coney Barrett did not participate). Pereida v. Wilkinson, No. 19-438 (Mar. 4, 2021) Clemente Pereida entered the United States illegally approximately 25 years ago. He is married and has three children, one of whom is a U.S. citizen. He was convicted in 2010 under the laws of the State of Nebraska of criminal impersonation, which is a divisible statute that includes four distinct crimes, three involving fraudulent conduct, but one of which, carrying on a business without a license, does not. The case focused on whether Pereida is required to prove definitively that he had not been convicted of one of the crimes that involved fraud.

The government presented a copy of the criminal complaint against Pereida showing that Nebraska had charged him with using a fraudulent Social Security card to obtain employment. Pereida presented nothing to prove the contrary, but argued instead that any ambiguity regarding his conviction should be resolved in his favor.

Justice Neil Gorsuch writing for the Court’s majority did not agree. The majority found that an individual seeking to cancel a lawful removal order has the burden of showing they have not been convicted of a disqualifying offense. Pereida did not carry that burden when the record shows he has been convicted under a statute listing multiple offenses, some of which are disqualifying, and the record is ambiguous as to which crime formed the basis of his conviction.

Justice Stephen Breyer, writing for the dissent, argued that instead of focusing on the burden of proof, the case should have been decided based on the “categorical approach.” Using this approach, a court does not consider the facts of the individual’s conduct but rather whether the conviction necessarily or categorically triggers a consequence under federal law. Any ambiguity would be resolved in favor of the noncitizen. Using this approach, Pereida might have been able to move on to the next step in seeking relief from deportation – showing his removal would impose an “‘exceptional and extremely unusual’ hardship on a close U.S. citizen relative ….”

The majority’s approach allows the fact finder to look to evidence outside the conviction records itself and limits potential relief from removal for long-term noncitizens convicted under divisible statutes. 

Jackson Lewis P.C. © 2021National Law Review, Volume XI, Number 68
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Michael H. Neifach Jackson Lewis Employment visa Lawyer border security matters attorney
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Michael Neifach is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. He is a recognized leader on immigration, visa and border security matters, and he is Co-Leader of the firm's Immigration practice group.

Mr. Neifach has held senior positions at the White House Homeland Security Council, U.S. Department of Homeland Security, and U.S. Immigration and Customs Enforcement (ICE). He served as General Counsel at ICE from July 2007 through January 2009. Following his government service, Mr. Neifach oversaw...

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Amy L. Peck, Immigration Attorney, Jackson Lewis, Worksite Compliance Lawyer
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Amy L. Peck is a Principal in the Omaha, Nebraska, office of Jackson Lewis P.C. She dedicates her practice exclusively to immigration law and worksite compliance, and she is Co-Leader of the firm's Immigration practice group.

Ms. Peck is one of 21 Directors elected to serve on the 14,000-member American Immigration Lawyers Association (AILA) Board of Governors. She currently is serving on the Board of Trustees of the American Immigration Council.

Ms. Peck is a member of the AILA National...

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