Pereida v Wilkinson, (2021), was a United States Supreme Court (the Court) case in which the Court ruled that under the Immigration and Nationality Act (INA) an alien seeking to cancel a lawful removal order bears the burden of showing that he has not been convicted of a disqualifying offense. An alien has not carried that burden when the record shows he has been convicted under a statute limiting multiple offenses, some of which are disqualifying, and the record is ambiguous as to which crime formed the basis of his conviction.
Background.
Under the INA, certain nonpermanent residents may seek to cancel an order of removal and adjust to the status of an alien lawfully admitted for permanent residence by applying to the United States Attorney General through the Executive Office for Immigration Review (EOIR), a subagency of the United States Department of Justice. As part of their application, the alien must demonstrate that they (1) have been physically present in the United States for a continuous period of not less than 10 years immediately preceding the application, (2) have been a person of good moral character during such period, (3) have not been convicted of an offense that would either render them inadmissible to be admitted to the United States or deportable from the United States, and (4) establishes that removal would result in exceptional and extremely unusual hardship to the alien's qualifying relative who is a United States citizen or lawful permanent resident.
Clemente Avelino Pereida was a citizen of Mexico who entered the United States without authorization or inspection in approximately 1995. He relocated to Nebraska with his family, was gainfully employed and paid taxes, and with his wife raised three children, one a U.S. citizen and another a Deferred Action for Childhood Arrivals recipient. After an arrest, he was identified as an unlawfully present alien, and placed into removal proceedings in 2009. He did not contest his removability but instead applied to cancel his removal and adjust status to a lawful permanent resident. To demonstrate the requirements for cancellation of removal meant he had to produce records of his criminal history. But given his recent arrest, he was progressing through immigration proceedings in tandem with his criminal case.
In his criminal case, state authorities charged him with attempted criminal impersonation for using a false Social Security card to seek employment at National Service Company of Iowa. The Nebraska Statute section 28-608 (2008) charged four different means in which a person could violate attempted criminal impersonation. Pereida was found guilty under the statute, he paid a fine and served no jail time for the offense.
While Pereida identified his conviction for his cancellation of removal application, he declined to offer any evidence of his conviction. The United States Department of Homeland Security produced his criminal complaint but that document did not specify which of the four means he actually violated. That was problematic because three of the means were disqualifying offenses as a crime involving moral turpitude (CIMT) that rendered him inadmissible or deportable while one (carrying a business without a license) did not. Pereida argued that such ambiguity meant that his prior conviction could not be construed as a disqualifying offense to bar eligibility for relief. The EOIR Immigration Judge presiding over his case determined that Pereida's attempted criminal impersonation conviction was a CIMT that disqualified him from cancellation of removal and ordered him removed from the United States.
