SCOTUS Decides Case on Cancellation of Removal of Convicted Alien

Today is a decision day in the U.S. Supreme Court, but no actual criminal cases were decided. There is one “crimigration” case, Pereida v. Wilkinson, No. 19-438.

Pereida had entered and remained in the country illegally, and he was slated for removal (i.e., deportation). He applied for cancellation of removal, a discretionary form of relief. One of the requirements for this relief is not having been convicted of certain types of crimes, one of which is “crimes of moral turpitude.”

Pereida had been convicted in Nebraska under a statute which, the immigration judge found, included several different offenses, most of which qualified as “moral turpitude” but one of which did not. The one that did not was carrying on a business without a license.

The Court held that Congress had placed the burden of proof for this kind of relief on the alien, and he had not carried it. Justice Gorsuch wrote the opinion of the Court, joined by Chief Justice Roberts and Justices Thomas, Alito, and Kavanaugh. Justice Breyer dissented, joined by Justices Sotomayor and Kagan. Justice Barrett did not participate in this case, which was argued in October, before she joined the court.

It does seem a harsh result on the facts. Pereida’s actual conduct was using a phony Social Security card to apply for employment. Nearly all illegal aliens have to do that to work, and although dishonest it does not cause any harm to an identifiable victim. If illegal aliens generally can apply for discretionary relief, it does not seem good policy to block Pereida from at least applying.

The majority’s answer is, in essence, we don’t write the laws, Congress does, and that is what the law says.

Justice Breyer oddly does not lead off with a denunciation of the harshness to Pereida. Instead, he leads with resounding support for the “categorical approach” that the Court has applied in other circumstances. Under that approach, everyone convicted under a single statute is treated as if they were guilty of the least culpable crime covered by that statute, with no regard for the facts of the actual case. Talk about leading with your chin. The categorical approach has been strongly, and in my opinion correctly, criticized.

Justice Breyer supports the approach on practical grounds while acknowledging its sometimes anomalous results. The record in a guilty-plea case shows only the conduct defendant was accused of and what statute he admitted violating. But using that record, despite its limitations, would get us closer to just results than the categorical approach.

This case offers a prime example of why the Court should ditch the categorical approach and allow courts to consider the entire record of prior offenses to see what the perpetrator actually did. Instead, the dissent takes the opposite tack. Strange.