Bloomberg Law
March 4, 2021, 3:22 PMUpdated: March 4, 2021, 11:43 PM

Gorsuch Delivers Blow to Some Longtime Immigrants, Families (2)

Kimberly Strawbridge Robinson
Kimberly Strawbridge Robinson

The Supreme Court made it easier for the government to deport certain longtime immigrants following a minor criminal conviction, a surprise given the justices’ concern at argument that such a decision could lead to harsh results for undocumented immigrants and their families.

The 5-3 ruling was authored by Justice Neil Gorsuch and joined by the other conservatives who heard the case in October. It said that immigrants who entered the country illegally bear the “heavy burden” of proving eligibility for so-called discretionary relief from removal in these circumstances under the Immigration and Nationality Act.

Gorsuch acknowledged that noncitizens have “an uphill climb” to satisfy that burden and found that the Mexican national at the center of the case hadn’t successfully done so. Clemente Avelino Pereida, therefore, isn’t eligible to stay in the U.S.

“Today’s decision is without doubt a harsh one,” said Kate Evans, who runs Duke Law School’s Immigrant Rights Clinic.

The first immigration ruling of the term seems limited to situations where the noncitizen bears the burden of proof, rather than the government, Evans said. But even with that limitation, she said the decision will prevent thousands from even asking to have the hardship of their deportation on U.S. citizen and lawful permanent resident family members considered.

Gorsuch emphasized, however, that the relief—what’s known as cancellation of removal—is a “narrow pathway.”

In U.S. for 25 Years

Pereida, as Justice Brett Kavanaugh pointed out at argument, has lived in the U.S. for 25 years and has a wife and three children here, one a U.S. citizen and another allowed to stay temporarily under the Obama-era Deferred Action for Childhood Arrivals (DACA) program.

Pereida was convicted in 2010 of attempted criminal impersonation for using a false Social Security card to obtain employment, a misdemeanor in Nebraska for which he was fined $100.

But he didn’t meet his burden to show that his crime wasn’t one of moral turpitude, or a shocking offense making him ineligible for relief, the court said.

The court rejected Pereida’s argument that he’d met his burden under the “categorical approach.” Under that standard, a noncitizen can’t be considered to have been convicted of a disqualifying crime if the state statute in play includes some crimes that involve moral turpitude and some that do not.

The ruling creates an exception to the court’s normal approach, which asks if the criminal record itself “necessarily establishes a conviction for a certain category of crimes,” Evans said. Ambiguity in those documents typically means the noncitizen is considered not to have committed such a crime.

But the federal act’s “plain terms” say the immigrant bears the burden to show eligibility, the court said. Any ambiguity doesn’t work against the government, but instead against the immigrant, it added.

Immigration cases tend to split the justices into their traditional ideological brackets and this case was no different with Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissenting.

The ruling requires immigrants “to introduce a wide range of documentary evidence and testimony to establish” that they haven’t been convicted of a disqualifying crime, Breyer wrote for the dissenting justices.

Chief Justice Roberts noted during oral argument that those other documents may not always be available.

The “reality, as I understand it, is that these things aren’t often papered, because you’ve got a lot of busy criminal dockets and plea bargains and other things like that,” he said.

Now “immigrants—including those detained and without counsel—bear the risk that court documents they cannot control will be either unavailable or too unclear to prevent their deportation,” Evans said.

Justice Amy Coney Barrett didn’t participate in the decision, as she hadn’t yet been confirmed to the bench.

The case is Pereida v. Wilkinson, U.S., No. 19-438.

(Adds comment, new headline)

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at

To contact the editors responsible for this story: Seth Stern at; John Crawley at; Gregory Henderson at