To Remove or Not to Remove?

March 5, 2020

IRLI urges Supreme Court to keep burden of proof on criminal aliens

WASHINGTON – Yesterday the Immigration Reform Law Institute (IRLI) filed a friend-of-the-court brief in the U.S. Supreme Court arguing that a criminal alien trying to have his removal order cancelled on the ground that the crime he was convicted of was not a crime of moral turpitude as defined in immigration law bears the burden of showing what crime, exactly, he was convicted of when the record before the immigration court is unclear on that point.

The petitioner in this case is an alien who was convicted under a Nebraska criminal statute that sets forth a number of crimes, including fraud – a crime of moral turpitude – and other crimes that are not crimes of moral turpitude. The record before the immigration court merely stated that he had been convicted under this statute, so it was unclear whether he had been convicted of a crime of moral turpitude or not.

Finding that it was the alien’s responsibility to produce a more detailed record showing that he had not been convicted of a crime of moral turpitude, the immigration judge refused to cancel his removal. The alien has appealed all the way to the Supreme Court, arguing that the burden of proof on this issue should be on the government.

In its brief, IRLI shows that, under old and very well-established precedent, one seeking an exemption such as cancellation of removal bears the burden of showing he is eligible for it. IRLI also points out the mischievous consequences that would come from putting the burden of proof on the government: for example, sanctuary jurisdictions can be expected to block records of trial from government attorneys in order to keep aliens who had committed crimes of moral turpitude in the country.

“It is unacceptable that aliens who should be deported because they have committed serious crimes can nevertheless have their removal cancelled in connivance with sanctuary states,” said Dale L. Wilcox, executive director and general counsel of IRLI. “It is they who are asking the court for an exemption, and they should be prepared to prove they deserve it. A ruling otherwise would make the immigration enforcement gap between sanctuary states and other parts of the country even wider than it already is – and put our citizens in even greater danger. We hope the Court upholds the sensible decisions of the lower courts in this case, and insists on the uniform immigration system that the Constitution calls for.”

The case is Pereida v. Barr, No. 19-438 (Supreme Court).

For additional information, contact:

Brian Lonergan • 202-232-5590 • [email protected]