By Manuel D. Vargas
Against the backdrop of an unprecedented global pandemic endangering the health and well-being of families across the nation and the world, the Supreme Court will hear argument on October 14 in Pereida v. Barr,an immigration case in which Justice Department lawyers are taking an aggressive position that, if adopted by the Court, would further imperil families with immigrant members.
The stakes in the Pereida case are high, now more than ever. The petitioner, Clemente Avelino Pereida, has lived in the United States with his family for twenty-five years, working and paying taxes. Although Mr. Pereida currently lacks legal status, one of his children is a U.S. citizen, and another came to this country as a young child and received protection under the Deferred Action for Childhood Arrivals (DACA) policy.
Facing the possibility of removal, all Mr. Pereida asks is to be allowed to apply for “cancellation of removal,” a form of discretionary relief provided by Congress for noncitizens with long residence in the country who can show that deportation would result in “exceptional and extremely unusual” hardship to a U.S. citizen or lawful permanent resident family member. The government’s lawyers argue that Mr. Pereida is barred from even applying for this relief because of a misdemeanor conviction from over ten years ago—a misdemeanor false ID conviction, based on the alleged use of a false social security number for work purposes, for which Mr. Pereida received only a $100 fine.
Specifically, the government’s lawyers argue that Mr. Pereida failed to demonstrate that his conviction is not a “crime involving moral turpitude,” and thus that he failed to meet his burden of proof to show eligibility for relief. But Mr. Pereida disclosed his conviction, and the Immigration Judge reviewed and considered records of the conviction. All parties agree that the conviction records do not establish that Mr. Pereida was necessarily convicted of a crime involving moral turpitude because at least one subsection of the Nebraska state statute he was convicted of violating covers conduct that does not involve moral turpitude because it is not necessarily “base, vile, or depraved,” as required for a moral turpitude finding.
Consider whether the alleged offense in Mr. Pereida’s case of use of a false social security number for work purposes should necessarily be deemed to meet this “base, vile or depraved” standard. Reviewing a comparable federal false social security number offense, one federal appellate court has stated, “it seems inconsistent with the terms ‘base, vile, or depraved’ to hold that an unauthorized immigrant who uses a false social security number so that she can hold a job, pay taxes, and support her family would be guilty of a crime involving moral turpitude.” Or as Seventh Circuit Judge Richard Posner wrote in a concurring opinion in that case, “To prosecute and deport such a harmless person . . . –indeed a productive resident of the United States—would be a waste of taxpayers’ money, but to deport her on the ground that her crime was one of moral turpitude would be downright ridiculous.” A decision in favor of the government would nevertheless sanction automatic deportation for Mr. Pereida and others like him without any consideration of the underlying circumstances or hardship that would be suffered by their families, including those with U.S. citizen or legal resident family members.
Ignoring Mr. Pereida’s long residence in the United States and significant family hardship at stake, the government’s lawyers are pushing an aggressive legal position that he is ineligible for relief because the records of conviction in his case do not show under which subsection of the Nebraska criminal statute he was convicted and thus, they argue, he might have been convicted of other conduct that does involve moral turpitude. They thus argue that he should suffer the penalty for the inconclusive nature of the criminal records even though state court records in misdemeanor cases routinely omit details such as subsections and paragraph numbers.
Indeed, a friend-of-the-court brief filed with the Supreme Court by the National Association of Criminal Defense Lawyers (NACDL) extensively documents the frequent incompleteness of state and local criminal court recordkeeping practices in quickly-processed misdemeanor and other low-level criminal cases. After reviewing record-keeping practices in states around the country and showing how records often are not created or reliably maintained in low-level cases, or are destroyed after the passage of a certain amount of time, the NACDL concluded, “When noncitizens are faulted for the paucity of these records, it creates a system in which immigration outcomes are tied to the bureaucratic decisions of county clerks’ offices and the idiosyncrasies of courts’ guilty plea processes.” Yet that is precisely what the Justice Department seeks to accomplish: to punish immigrants for incomplete court paperwork over which they often have no control.
The Supreme Court may avoid such an extreme result, however, if it follows long-established legal principles and rejects the government’s position. This is because it is clear that the criminal court records in this case do not, as a legal matter, establish that Mr. Pereida was convicted of a disqualifying offense. Consistent with long-established legal principles that rightly require that the proof of the conviction necessarily establish any alleged disqualifying offense, he should be allowed to apply for relief. With knowledge of his offense in one hand and his contributions to his family and community in the other, an Immigration Judge may then be tasked with deciding whether Mr. Pereida will be allowed to remain in the United States.
Strict adherence to these fundamental legal principles is only more vital now with respect to the family unity relief at issue in this case during the current period in which U.S. families, including those with immigrant members, struggle to survive the dual challenges of the Covid-19 and economic crises.
Manuel (Manny) Vargas is Senior Counsel at the Immigrant Defense Project (IDP) and the author of several legal resource materials for advocacy on behalf of immigrants accused of crimes, including Representing Immigrant Defendants in New York (6th ed., 2017).