Raising the Bar for Immigrants Who Were Convicted of a Crime

Supreme cour view with an American flag

In early March, a Supreme Court ruling made it more difficult for immigrants who were convicted of a crime to avert deportation. Although not all convictions lead to deportation for longtime immigrants, the ruling showed that deportation is possible if immigrants fail to prove that their convictions aren’t for serious, disqualifying crimes.

What the Supreme Court Ruling Established

The specific case involved in the March ruling involved a Mexican citizen, Clemente Avelino Pereida, who had legally entered the U.S. and lived as a legal resident for over 25 years. Pereida had initially been charged with using a fraudulent Social Security card to secure employment in Nebraska. Ultimately, he was convicted based on a Nebraska law pertaining to criminal impersonation.

Pereida was unable to prove that he wasn’t convicted of a serious crime, according to Justice Neil Gorsuch, who composed and submitted the final opinion based on a 5-3 conservative-majority Supreme Court ruling against Pereida.

As part of the ruling, Gorsuch wrote that, according to immigration law, “certain nonpermanent aliens seeking to cancel a lawful removal order must prove that they have not been convicted of a disqualifying crime.”

Normally, immigrants who aren’t convicted of a serious offense and facing deportation can seek a form of relief called cancellation of removal to avoid deportation, provided they’ve lived in the U.S. for 10 years or longer and meet other requirements. However, the ruling against Pereida determined that he wouldn’t be able to apply for this form of relief due to his failure to prove that the conviction wasn’t for a serious crime.

Arguing in Pereida’s Favor

Justice Stephen Breyer, representing the dissenting opinion, argued that the court should have ruled in favor of Pereida because the crime for which he was convicted fell into a less serious category of the state’s law. Breyer wrote that the law under which Pereida was convicted included both crimes of moral turpitude and those of a less serious nature. Specifically, he wrote that “the relevant documents in this case do not show that the previous conviction at issue necessarily was for a crime involving moral turpitude.”

Proving That a Criminal Conviction Isn’t for a Serious Crime

Pereida’s case demonstrates the difficulty that many immigrants may experience if they are unable to prove that their criminal convictions were for less serious crimes. While they may be able to seek cancellation of removal if their criminal convictions aren’t for serious crimes, the definition of a serious crime may differ based on individual state laws.

For example, the Nebraska law that led to Pereida’s conviction included a broad category of crimes considered serious, ranging from crimes of “moral turpitude” to offenses that aren’t considered as serious under other laws. In U.S. law, moral turpitude is a term that refers to “an act or behavior that gravely violates the sentiment or accepted standard of the community.” The dissenting opinion of the Supreme Court ruling attempted to argue that Pereida’s use of Social Security to fraudulently obtain a job didn’t fall into that category, instead constituting a less serious offense.

Based on these differing definitions, immigrants’ criminal convictions may be considered serious, even if the crime is ordinarily considered less serious. As a result, the ability to seek legal counsel from the attorney general to combat deportation will be unavailable to many immigrants with perceivably serious convictions. As long as they are unable to prove that their convictions were for less serious crimes, they’re at a greater risk of deportation, even if these immigrants and their families have been in the country legally for many years.

The Difficulties That Many Longtime Immigrants Experience

For many years, courts have relied on a “categorical approach” to decide on the appropriate repercussions for criminal convictions, in which case the courts attempt to determine what an individual is convicted of as opposed to the crime they actually committed.

Courts then may decide to deport individuals if the conviction matches grounds for removal, even if the actual crime committed isn’t as serious as the category. The Pereida case introduced a new approach in which a particular conviction can prevent noncitizens from seeking cancellation of removal and other potential forms of relief, including asylum, as long as it’s unclear whether that conviction matches removal grounds.

In addition to unclear state court criminal records or older records that are often destroyed, noncitizens risking deportation face other obstacles that can complicate their situation, including language barriers, the absence of legal representation, and the need to contest their case while in detention.

Ultimately, the Supreme Court’s ruling in the case of Pereida will likely lead to the deportation of many other non-citizens, including green card holders and undocumented immigrants, regardless of how long they’ve lived in the U.S.