Saturday, March 6, 2021

Pereida v. Wilkinson

SCOTUS issued a big immigration case this week: Pereida v. Wilkinson. As Kate Evans (Duke), writes over at SCOTUSBlog, "The court ruled 5-3 that because the noncitizen bears the burden to prove he is eligible for relief, he cannot carry that burden when his criminal record is unclear as to whether he was convicted of a crime that disqualifies him from relief."

César Cuauhtémoc García Hernández (Denver) has a longer take on Pereida over at his blog, Crimmigration. As he characterizes the opinion: "gaps in conviction records created by state courts should be treated against migrants who are required to show that they haven’t been convicted of certain types of crimes." This, César notes, it particularly unfair given that "migrants don’t control court records." Going forward, defense attorneys are going to have to "prioritize clarity above all else."

Putting aside the woes of Pereida himself, César notes that the opinion doesn't bode well for the categorical approach as a general matter, with a footnote that, as he reads it, "seem[s] to invite Congress to eliminate the categorical approach."


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