Pereida v. Wilkinson

Clemente Avelino Pereida, a Mexican citizen, entered the United States unlawfully around 1995 and lived there for about 25 years. While his removal proceedings were pending, he was convicted under a Nebraska statute for using a fraudulent Social Security card to obtain employment. The Nebraska statute was divisible, containing multiple offenses, some of which involved moral turpitude and one which did not. The immigration judge, Board of Immigration Appeals, and Eighth Circuit all denied his application for cancellation of removal, finding that the record was ambiguous as to which subsection he was convicted under and that he failed to prove his conviction was not disqualifying. The Supreme Court affirmed in a 5-3 decision.

The Supreme Court affirmed the Eighth Circuit's decision in a 5-3 ruling. Justice Gorsuch wrote the majority opinion, joined by Chief Justice Roberts and Justices Thomas, Alito, and Kavanaugh. Justice Breyer filed a dissenting opinion, joined by Justices Sotomayor and Kagan. Justice Barrett took no part in the case. The Court held that Pereida failed to carry his burden of showing that his conviction was not a disqualifying offense, thereby making him ineligible for cancellation of removal.

Whether a nonpermanent resident seeking cancellation of a lawful removal order bears the burden of proving that he has not been convicted of a disqualifying offense, particularly when the record of conviction under a divisible statute is ambiguous as to which subsection formed the basis of the conviction.

The decision significantly tightened the standards for noncitizens seeking relief from deportation. It makes it harder for immigrants with ambiguous criminal records—especially those convicted under divisible statutes—to obtain cancellation of removal, as the burden falls on them to prove their conviction was not disqualifying. The ruling disproportionately affects Black and brown immigrants and has been criticized for abandoning decades of precedent on the immigration consequences of criminal convictions. It also complicates defense strategies in both criminal and immigration proceedings.