US Supreme Court rules undocumented immigrants must prove eligibility for protection

The US Supreme Court ruled 5-3 Thursday that undocumented immigrants bear the burden of showing that they have not been convicted of a crime involving “moral turpitude,” or they will face lawful removal.

Clemente Pereida, is being deported under the Immigration and Nationality Act (INA) of 1952. He has lived in the US for more than 25 years and has started a family in the country. In 2010, Pereida was convicted of attempted criminal impersonation for using a fraudulent social security card in hopes of securing employment.

Pereida argued under the INA that the crime he was convicted of falls short of the standard of “moral turpitude” under the Act, relying on the ambiguity of the statute. His argument is based upon the categorical approach, which looks into the elements of the statute instead of the defendant’s actions. However, the court rejected his argument, deciding that the ambiguity does not work in favor but against an undocumented immigrant, essentially raising the bar of evidence required for a defendant to prove his or her eligibility for relief.

Justice Neil Gorsuch wrote the majority opinion, with Justices Elena Kagan, Stephen Breyer and Sonia Sotomayor dissenting. Breyer stated in his dissent that it is a harsh and unfair burden for immigrants, requiring them to submit a wide range of evidence and testimonies. He said that such a requirement will “undermine the judicial and administrative efficiency” of the categorical approach.

Terry Ang | Victoria U. Wellington Faculty of Law, NZ

05 MARCH 2021, jurist.org