Pereida v. Wilkinson

• Decision Date: 04 March 2021
• Docket Number: No. 19-438,19-438
• Citation: 209 L.Ed.2d 47,141 S.Ct. 754
• Parties: Clemente Avelino PEREIDA, Petitioner v. Robert M. WILKINSON, Acting Attorney General
• Court: U.S. Supreme Court

141 S.Ct. 754

209 L.Ed.2d 47

Clemente Avelino PEREIDA, Petitioner

v.Robert M. WILKINSON, Acting Attorney General

No. 19-438

Supreme Court of the United States.

Argued October 14, 2020

Decided March 4, 2021

David V. Chipman, Raul F. Guerra, Monzón, Guerra & Associates, Lincoln, NE, Thomas M. Bondy, Benjamin P. Chagnon, Monica Haymond, Orrick, Herrington & Sutcliffe LLP, Washington, DC, Brian P. Goldman, Counsel of Record, Thomas King-Sun Fu, Kory DeClark, Orrick, Herrington & Sutcliffe LLP, San Francisco, CA, E. Joshua Rosenkranz, Orrick, Herrington & Sutcliffe LLP, New York, NY, for Petitioner.

Noel J. Francisco, Solicitor General, Joseph H. Hunt, Assistant Attorney General, Edwin S. Kneedler, Deputy Solicitor General, Jonathan C. Bond, Assistant to the Solicitor General, Donald E. Keener, John W. Blakeley, Patrick J. Glen, Attorneys, Department of Justice, Washington, DC, for Respondent.

Justice GORSUCH delivered the opinion of the Court.

Everyone agrees that Clemente Avelino Pereida entered this country unlawfully, and that the government has secured a lawful order directing his removal. The only remaining question is whether Mr. Pereida can prove his eligibility for discretionary relief.

Under the Immigration and Nationality Act (INA), individuals seeking relief from a lawful removal order shoulder a heavy burden. Among other things, those in Mr. Pereida's shoes must prove that they have not been convicted of a "crime involving moral turpitude." Here, Mr. Pereida admits he has a recent conviction, but declines to identify the crime. As a result, Mr. Pereida contends, no one can be sure whether his crime involved "moral turpitude" and, thanks to this ambiguity, he remains eligible for relief.

Like the Eighth Circuit, we must reject Mr. Pereida's argument. The INA expressly requires individuals seeking relief from lawful removal orders to prove all aspects of their eligibility. That includes proving they do not stand convicted of a disqualifying criminal offense.

I

The INA governs how persons are admitted to, and removed from, the United States. Removal proceedings begin when the government files a charge against an individual, and they occur before a hearing officer at the Department of Justice, someone the agency refers to as an immigration judge. If the proof warrants it, an immigration judge may order an individual removed for, say, entering the country unlawfully or committing a serious crime while here. See 8 U.S.C. §§ 1229a, 1182(a), 1227(a).

Even then, however, an avenue for relief remains. A person faced with a lawful removal order may still ask the Attorney General to "cancel" that order. §§ 1229a(c)(4), 1229b(b)(1). To be eligible for this form of relief, a nonpermanent resident alien like Mr. Pereida must prove four things: (1) he has been present in the United States for at least 10 years; (2) he has been a person of good moral character; (3) he has not been convicted of certain criminal offenses; and (4) his removal would impose an "exceptional and extremely unusual" hardship on a close relative who is either a citizen or permanent resident of this country. §§ 1229b(b)(1), 1229a(c)(4). Establishing all this still yields no guarantees; it only renders an alien eligible to have his removal order cancelled. The Attorney General may choose to grant or withhold that relief in his discretion, limited by Congress's command that no more than 4,000 removal orders may be cancelled each year. § 1229b(e).

This narrow pathway to relief proved especially challenging here. The government brought removal proceedings against Mr. Pereida, alleging that he had entered the country unlawfully and had never become a lawful resident. In reply, Mr. Pereida chose not to dispute that he was subject to removal. Instead, he sought to establish only his eligibility for discretionary relief. At the same time, Mr. Pereida's lawyer explained to the immigration judge that Nebraska authorities were in the middle of prosecuting his client for a crime. Because the outcome of that case had the potential to affect Mr. Pereida's eligibility for cancellation of removal, counsel asked the immigration judge to postpone any further proceedings on Mr. Pereida's application for relief until the criminal case concluded. The immigration judge agreed.

In the criminal case, state authorities charged Mr. Pereida with attempted criminal impersonation. Under 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." Neb. Rev. Stat. § 28–608 (2008) (since amended and moved to Neb. Rev. Stat. § 28–638 ).

Ultimately, Mr. Pereida was found guilty, and this conviction loomed large when his immigration proceedings resumed. Before the immigration judge, everyone accepted that Mr. Pereida's eligibility for discretionary relief depended on whether he could show he had not been convicted of certain crimes, including ones "involving moral turpitude." 8 U.S.C. §§ 1182(a)(2)(A)(i)(I), 1227(a)(2)(A)(i), 1229b(b)(1)(C). And whatever else one might say about that phrase, the parties took it as given that a crime involving "fraud [as] an ingredient" qualifies as a crime involving "moral turpitude." Jordan v. De George , 341 U.S. 223, 227, 71 S.Ct. 703, 95 L.Ed. 886 (1951).

The parties' common ground left Mr. Pereida with an uphill climb. As the immigration judge read the Nebraska statute, subsections (a), (b), and (d) each stated a crime involving fraud, and thus each constituted a disqualifying offense of moral turpitude. That left only subsection (c)'s prohibition against carrying on a business without a required license. The immigration judge thought this crime likely did not require fraudulent conduct, but he also saw little reason to think it was the offense Mr. Pereida had committed. The government presented a copy of the criminal complaint against Mr. Pereida showing that Nebraska had charged him with using a fraudulent social security card to obtain employment. Meanwhile, Mr. Pereida declined to offer any competing evidence of his own. In light of this state of proof, the immigration judge found that Mr. Pereida's conviction had nothing to do with carrying on an unlicensed business in violation of subsection (c) and everything to do with the fraudulent (and thus disqualifying) conduct made criminal by subsections (a), (b), or (d).

Mr. Pereida's efforts to undo this ruling proved unsuccessful. Both the Board of Immigration Appeals (BIA) and the Eighth Circuit agreed with the immigration judge that Nebraska's statute contains different subsections describing different crimes. Pereida v. Barr , 916 F.3d 1128, 1131, 1133 (2019). They agreed, too, that subsections (a), (b), and (d) set forth crimes involving moral turpitude, while subsection (c) does not. At the same time, both found the case a little more complicated than the immigration judge thought. While the government's evidence revealed that Nebraska had charged Mr. Pereida with using a fraudulent social security card to obtain employment, and while that evidence would "seem to support a finding that the crime underlying [Mr. Pereida's] attempt offense involved fraud or deceit," the BIA and Court of Appeals observed that nothing in the record definitively indicated which statutory subsection Mr. Pereida stood convicted of violating. App. to Pet. for Cert. 17a. Still, neither the agency nor the Eighth Circuit could see how the absence of conclusive proof on this score might make a difference. Mr. Pereida bore the burden of proving his eligibility for relief, so it was up to him to show that his crime of conviction did not involve moral turpitude. Because Mr. Pereida had not carried that burden, he was ineligible for discretionary relief all the same.

It is this judgment Mr. Pereida asks us to reverse. In his view, Congress meant for any ambiguity about an alien's prior convictions to work against the government, not the alien. The circuits have disagreed on this question, so we granted certiorari to resolve the conflict. 589 U.S. ––––, 140 S.Ct. 680, 205 L.Ed.2d 449 (2019).

II

A

Like any other, Mr. Pereida's claims about Congress's meaning or purpose must be measured against the language it adopted. And there, a shortcoming quickly emerges. The INA states that "[a]n alien applying for relief or protection from removal has the burden of proof to establish" that he "satisfies the applicable eligibility requirements" and that he "merits a favorable exercise of discretion." 8 U.S.C. § 1229a(c)(4)(A). To carry that burden, a nonpermanent resident alien like Mr. Pereida must prove four things, including that he "has not been convicted" of certain disqualifying offenses, like crimes involving moral turpitude. § 1229b(b)(1)(C).

Thus any lingering uncertainty about whether Mr. Pereida stands convicted of a crime of moral turpitude would appear enough to defeat his application for relief, exactly as the BIA and Eighth Circuit held.

It turns out that Mr. Pereida actually agrees with much of this. He accepts that he must prove three of the four statutory eligibility requirements (his longstanding presence in the country, his good moral character, and extreme hardship on a relative). He does not...