Criminal Aliens Cannot Hide their Crimes

October 21, 2021

IRLI and attorneys group urge BIA to apply Supreme Court precedent as written

WASHINGTON—Today the Immigration Reform Law Institute (IRLI) and Attorneys United for a Secure America (AUSA), a project of IRLI, filed friend-of-the-court briefs in the Board of Immigration Appeals (BIA) in a case in which the BIA is considering the implications of a recent Supreme Court holding that criminal aliens cannot hide behind unclarity in the record about whether their crimes were ones of moral turpitude. Under federal law, aliens convicted of such crimes must be removed from the country.

In March, in a victory for strong enforcement of our immigration laws, the Supreme Court held that a criminal alien was ineligible for cancellation of removal based on his criminal conviction where the record was unclear whether that conviction was for a crime of moral turpitude requiring his deportation. The Court affirmed that the burden of showing what crime, exactly, the alien was convicted of—and whether it was a crime of moral turpitude or not—was on the alien.

Both the IRLI brief and the AUSA brief urge the BIA to apply this ruling commonsensically, showing, based on clear language by the Supreme Court and other courts, that a criminal alien cannot meet this burden by a preponderance of the evidence where the record remains ambiguous. Instead, the alien must be able to clarify the record itself.

“It is important that the Supreme Court’s ruling on this issue not be watered down,” said Dale L. Wilcox, executive director and general counsel of IRLI. “That could put us in a situation where sanctuary states could withhold records from government attorneys to enable criminal aliens to show with ‘circumstantial evidence’ that they likely did not commit a crime of moral turpitude, when in fact they did. We hope the Board forecloses that result here, and applies the Supreme Court’s ruling as written.”

The case is Amicus Invitation No. 21–30–09 (BIA).