Tuesday, October 13, 2020

Case preview: Harsh immigration consequences from ambiguous state criminal convictions


On SCOTUSBlog, Kate Evans previews the oral arguments tomorrow in Pereida v. Barr, in which as described by ImmigrationProf blogger Ingrid Eagly, "the Supreme Court will decide whether a criminal conviction bars a noncitizen from applying for relief from removal when the record of conviction is merely ambiguous as to whether it corresponds to an offense listed in the Immigration and Nationality Act. "  Here is Evans' bottom line:

"The majorities in these cases often counted on the support of Justices Antonin Scalia, Anthony Kennedy and Ruth Bader Ginsburg. Justice Neil Gorsuch heard a similar case as a circuit judge but was appointed to the Supreme Court before the case was decided, so we do not know which way he would have ruled. If Gorsuch joins Chief Justice John Roberts and Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan in their strict interpretation of the term conviction, Pereida could emerge a winner. With the court’s new composition, however, the outcome is uncertain. In the balance lies the ability of thousands of other immigrants to present their evidence of exceptional hardship for immigration judges to consider."

UPDATE (Oct. 17):  Here is the transcript to the oral argument.  Reports saw positive signs for Pereida in the arguments.  See, for example, a Jurist article highlighting comments from Chief Justice Roberts.   Suzanne Monyak on Law360 ("Justices Wary Of Barring Deportation Relief For Misdemeanor") observed that 

"The U.S. Supreme Court appeared hesitant . . . to find that an unauthorized immigrant and father of three should be categorically barred from deportation relief because of a misdemeanor conviction, with Justice Brett Kavanaugh saying the government's position rests on a `thin reed.'

Questioning the government's attorney during oral arguments, Justice Kavanaugh expressed doubt over the government's claim that immigrants facing deportation carry the burden of proving they are eligible for immigration protections despite being convicted of certain crimes, when the record surrounding such convictions is incomplete or unclear."


UPDATE (October 19):  Kate Evans analyzes the arguments here.  her conclusion, which rang true to me,

"[a] majority of the justices seemed resistant to making someone categorically ineligible for cancellation of removal based on, as Kavanaugh put it, such a “thin reed” when the criminal records are likely to be `thin as well.' If the court indeed rules this way, the case would follow the Supreme Court’s other decisions that have rejected mandatory deportation for drug paraphernalia in the form of a sock, the social sharing of a small amount of marijuana, and misdemeanor possession of a tablet of Xanax."



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