As of Thursday, March 4, 2021, noncitizens with criminal records who are hoping to avoid deportation must prove that their crimes aren’t among those that Congress has decreed require mandatory removal from the U.S.

Federal laws are often ambiguous, which compounds the problem. Some immigration provisions require the deportation of any noncitizens who have been convicted of crimes with an aspect of “moral turpitude.” It’s been difficult for courts to apply that provision, especially when a statute includes both serious and minor offenses that have to do with violence or fraud.

In the Supreme Court’s opinion, Justice Neil Gorsuch wrote, “Not infrequently, a single criminal statute will list multiple, stand-alone offenses, some of which trigger consequences under federal law, and others of which do not.” In these cases, he said, proving that the violation doesn’t require mandatory removal is up to the noncitizen. And he said that the Mexican citizen who was the subject of the case failed to prove that he was not convicted of a serious crime.

Justice Stephen Breyer wrote in his dissent that noncitizens who committed violations that did not require deportation might be cast out, and so only crimes that involve moral turpitude should prompt deportation.

The case SCOTUS heard was about Clemente Avelino Pereida, a Mexican national. He entered the U.S. illegally in the 1990s and is married with three kids, one of whom is a U.S. citizen. He has worked on cleaning jobs and in construction.

Pereida was arrested in Nebraska for using a fake Social Security card to get a cleaning job. He pleaded no contest to a misdemeanor charge of criminal impersonation and was fined $100. Immigration agents began deportation proceedings.

Pereida agreed he had no legal right to remain in the U.S, but requested that deportation not occur. Even though federal law grants the attorney general the discretion to waive deportation for up to 4,000 people annually who’ve been in the United States for more than ten years, haven’t been convicted of certain crimes, have good character, and whose removal would impose “exceptional hardship” on a close relative who is a U.S. citizen or lawful resident, a U.S. immigration judge found Pereida wasn’t eligible for this relief.

Nebraska’s criminal impersonation law includes several types of prohibited conduct. Not all of them, such as running a business without a license, involve moral turpitude. The Nebraska prosecutor put the entire statute in the criminal complaint against Pereida without noting which provision was supposed to have been breached.

Justice Gorsuch wrote: “Analyzing whether Mr. Pereida’s conviction constituted a ‘crime involving moral turpitude’ that would bar his eligibility for cancellation of removal, the immigration judge found that the Nebraska statute stated several separate crimes, some of which involved moral turpitude and one — carrying on a business without a required license — which did not. Because Nebraska had charged Mr. Pereida with using a fraudulent social security card to obtain employment, the immigration judge concluded that Mr. Pereida’s conviction was likely not for the crime of operating an unlicensed business, and thus the conviction likely constituted a crime involving moral turpitude. The Board of Immigration Appeals and the Eighth Circuit concluded that the record did not establish which crime Mr. Pereida stood convicted of violating. But because Mr. Pereida bore the burden of proving his eligibility for cancellation of removal, the ambiguity in the record meant he had not carried that burden and he was thus ineligible for discretionary relief.”

Gorsuch wrote, “No one before us questions that Nebraska’s statute contains some crimes of moral turpitude under federal law. Given this, it necessarily fell to Mr. Pereida to show that his actual offense was not among these disqualifying offenses.”

Justice Breyer disagreed. He wrote, “the relevant documents in this case do not show that the previous conviction at issue necessarily was for a crime involving moral turpitude. That should be the end of the case.”

Previously, when applying the Armed Career Criminal Act and other statutes, the court has given defendants the benefit of the doubt over convictions that stem from provisions of statutes that include many items, not all of which would trigger additional penalties such as an increased sentence. Breyer said the court should have used the same approach in the Pereida case.

Pereida’s attorney, Brian Goldman, said the decision “results in an injustice to Mr. Pereida, who’s lived and worked in the United States for over 25 years and raised his children here. And many other noncitizens in similar positions may now have to prove the unprovable about old, minor convictions just to ask for humanitarian relief from removal.”