Pereida v. Wilkinson, 592 U.S. 224

Background:

Pereida, an unlawfully present nonpermanent resident, sought cancellation of removal under INA §1229b(b)(1); eligibility requires not having been convicted of certain disqualifying crimes (including crimes involving moral turpitude).
While proceedings were stayed for a pending Nebraska prosecution, Pereida pleaded nolo contendere to attempted criminal impersonation under Neb. Rev. Stat. §28‑608 (which contains subsections (a)–(d)).
Some subsections (a),(b),(d) involve fraud (thus moral turpitude); subsection (c) (operating without a license) likely does not; the available state records did not definitively identify which subsection formed the conviction.
The immigration judge relied on the state complaint (alleging use of a fraudulent Social Security card) and concluded the conviction likely involved fraud; BIA and 8th Cir. found the record ambiguous and held Pereida—who bore the burden of proving eligibility—failed to show he was not convicted of a disqualifying offense.
The Supreme Court (majority Gorsuch) affirmed: when a conviction is under a divisible statute listing both disqualifying and non‑disqualifying offenses and the record is ambiguous, the alien bearing the burden of proof loses. Justice Breyer dissented (joined by Sotomayor and Kagan), arguing the categorical/modified categorical approach and its document limits require resolving ambiguity in the alien’s favor.

Issues:

Issue	Pereida's Argument	Government's Argument	Held
Who bears the risk when a prior conviction under a divisible statute could be for a disqualifying or non‑disqualifying offense?	Ambiguity should be resolved for the alien; courts applying the categorical approach should treat limited record documents as controlling and, if inconclusive, classify the conviction as non‑disqualifying.	The INA places the burden of proving eligibility for relief on the applicant; if record is ambiguous as to which statutory alternative produced the conviction, the alien fails to meet that burden.	Court held the alien bears the burden; ambiguity in the record defeats eligibility.
Does the modified categorical approach eliminate factual inquiry about which alternative offense a defendant was convicted of?	The modified categorical approach (and its document limits) resolves the question as a legal one from the permissible record; no broader factual proof should be required of the alien.	Determining which statutory alternative was the basis of conviction is a factual, historical question; the party who bears the burden must prove it.	Court held the threshold identification of which offense was the basis is a factual question subject to the applicant’s burden.
Do record‑keeping or practical fairness concerns justify shifting the burden to the government?	Practical difficulties and incomplete records counsel applying the categorical approach to benefit the alien; shifting burden is unfair and undermines plea predictability.	Congress may fairly assign the risk to applicants for discretionary relief to prevent tactical withholding and because INA provides evidentiary tools.	Court declined to reallocate burdens for policy reasons; left record‑keeping remedies to Congress and noted INA permits several specified proof forms.

Key Cases Cited

Taylor v. United States, 495 U.S. 575 (1990) (foundational articulation of the categorical approach focusing on statutory elements rather than underlying conduct)
Shepard v. United States, 544 U.S. 13 (2005) (limits documents courts may consult under modified categorical approach)
Descamps v. United States, 570 U.S. 254 (2013) (explains modified categorical approach as a tool to identify the offense of conviction)
Mathis v. United States, 579 U.S. 500 (2016) (addresses divisible statutes and instructs use of record materials to identify which statutory alternative formed the conviction)
Johnson v. United States, 559 U.S. 133 (2010) (held ambiguous records defeat the government's burden under ACCA; discussed by analogy)
Moncrieffe v. Holder, 569 U.S. 184 (2013) (applies categorical approach in immigration; emphasizes focus on statutory elements)
Mellouli v. Lynch, 575 U.S. 798 (2015) (affirmed categorical approach in immigration context and noted practical limits)
Leocal v. Ashcroft, 543 U.S. 1 (2004) (applies categorical approach to define crimes relating to deportation)
Jordan v. De George, 341 U.S. 223 (1951) (fraud as an ingredient qualifies as moral turpitude)
Apprendi v. New Jersey, 530 U.S. 466 (2000) (discusses the fact of prior conviction and Sixth Amendment considerations)
Nijhawan v. Holder, 557 U.S. 29 (2009) (addresses standards for immigration consequences and when courts may consider conduct)
Carachuri‑Rosendo v. Holder, 560 U.S. 563 (2010) (applies categorical approach in immigration context)
Gonzales v. Duenas‑Alvarez, 549 U.S. 183 (2007) (addresses generic offense comparison under the categorical approach)