PEREIDA v. WILKINSON, ACTING ATTORNEY GENERAL
No. 19-438
SUPREME COURT OF THE UNITED STATES
March 4, 2021
592 U.S. ___ (2021)
GORSUCH, J.
OCTOBER TERM, 2020. Arguеd October 14, 2020. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337 (1906).
SUPREME COURT OF THE UNITED STATES
Syllabus
PEREIDA v. WILKINSON, ACTING ATTORNEY GENERAL
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
No. 19–438. Argued October 14, 2020—Decided March 4, 2021
Immigration officials initiated removal proceedings against Clemente Avelino Pereida for entering and remaining in the country unlawfully, a charge Mr. Pereida did not contest. Mr. Pereida sought instead to establish his eligibility for cancellation of removal, a discretionary form of relief under the Immigration and Nationality Act (INA).
Held: Under the INA, certain nonpermanent residents seeking to cancel
(a) The INA squarely places the burden of proof on the alien to prove eligibility for relief from removal.
(b) Even so, Mr. Pereida contends that he can carry the burden of showing his crime did not involve moral turpitude using the so-called “categorical approach.” Applying the categorical approach, a court considers not the facts of an individual‘s conduct, but rather whether the offense of conviction necessarily or categorically triggers a consequence under federal law. Under Mr. Pereida‘s view, because a person could hypothetically violate the Nebraska statute without committing fraud—i.e., by carrying on а business without a license—the statute does not qualify as a crime of moral turpitude. But application of the categorical approach implicates two inquiries—one factual (what was Mr. Pereida‘s crime of conviction?), the other hypothetical (could someone commit that crime of conviction without fraud?). And the Nebraska statute is divisible, setting forth multiple crimes, some of which the parties agree are crimes of moral turpitude. In cases involving
(c) It is not this Court‘s place to choose among competing policy arguments. Congress was entitled to conclude that uncertainty about an alien‘s prior conviction should not redound to his benefit. And Mr. Pereida fails to acknowledge some of the tools Congress seemingly did afford aliens faced with record-keeping challenges. See, e.g.,
916 F. 3d 1128, affirmed.
GORSUCH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS, ALITO, and KAVANAUGH, JJ., joined. BREYER, J., filed a dissenting opinion, in which SOTOMAYOR and KAGAN, JJ., joined. BARRETT, J., took no part in the consideration or decision of the case.
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 19–438
CLEMENTE AVELINO PEREIDA, PETITIONER v. ROBERT M. WILKINSON, ACTING ATTORNEY GENERAL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
[March 4, 2021]
JUSTICE GORSUCH delivered the opinion of the Court.
Everyone agrees that Clemente Avelino Pereida entered this country unlawfully, and that the government has secured a lawful order directing his removal. The only remaining question is whether Mr. Pereida can prove his eligibility for discretionary relief.
Under the Immigration and Nationality Act (INA), individuals seeking relief from a lawful removal order shoulder a heavy burden. Among other things, those in Mr. Pereida‘s shoes must prove that they have not been convicted of a “crime involving moral turpitude.” Here, Mr. Pereida admits he has a recent conviction, but declines to identify the crime. As a result, Mr. Pereida contends, no one can be sure whether his crime involved “moral turpitude” and, thаnks to this ambiguity, he remains eligible for relief.
Like the Eighth Circuit, we must reject Mr. Pereida‘s argument. The INA expressly requires individuals seeking relief from lawful removal orders to prove all aspects of their eligibility. That includes proving they do not stand convicted of a disqualifying criminal offense.
The INA governs how persons are admitted to, and removed from, the United States. Removal proceedings begin when the government files a charge against an individual, and they occur before a hearing officer at the Department of Justice, someone the agency refers to as an immigration judge. If the proof warrants it, an immigration judge may order an individual removed for, say, entering the country unlawfully or committing a serious crime while here. See
Even then, however, an avenue for relief remains. A person faced with a lawful removal order may still ask the Attorney General to “cancel” that order.
This narrow pathway to relief proved especially challenging here. The government brought removal proceedings against Mr. Pereida, alleging that he had entered the country unlawfully and had never become a lawful resident. In reply, Mr. Pereida chose not to dispute that he was subject to removal. Instead, he sought to establish only his eligibility for discretionary relief. At the same time, Mr. Pereida‘s lawyer explained to the immigration judge that Nebraska authorities were in the middle of prosecuting his client for
In the criminal case, state authorities charged Mr. Pereida with attempted criminal impersonation. Under Nebraska law, a person commits criminal impersonation if he:
“(a) Assumes a false identity and does an act in his or her assumed character with intent to gain a pecuniary benefit or to deceive or harm another;
“(b) Pretends to be a representative of some person оr organization and does an act in his or her pretended capacity with the intent to gain a pecuniary benefit . . . and to deceive or harm another;
“(c) Carries on any profession, business, or any other occupation without a license, certificate, or other authorization required by law; or
“(d) Without the authorization . . . of another and with the intent to deceive or harm another: (i) Obtains or records . . . personal identifying information; and (ii) Accesses or attempts to access the financial resources of another through the use of . . . personal identifying information for the purpose of obtaining credit, money . . . or any other thing of value.”
Neb. Rev. Stat. §28–608 (2008) (since amended and moved toNeb. Rev. Stat. §28–638 ).
Ultimately, Mr. Pereida was found guilty, and this conviction loomed large when his immigration proceedings resumed. Before the immigration judge, everyone accepted that Mr. Pereida‘s eligibility for discretionary relief depended on whether he could show he had not been convicted
The parties’ common ground left Mr. Pereida with an uphill climb. As the immigration judge read the Nebraska statute, subsections (a), (b), and (d) each stated a crime involving fraud, and thus each constituted a disqualifying offense of moral turpitude. That left only subsection (c)‘s prohibition against carrying on a business without a required license. The immigration judge thought this crime likely did not require fraudulent conduct, but he also saw little reason to think it was the offense Mr. Pereida had committed. The government presented a copy of the criminal complaint against Mr. Pereida showing that Nebraska had charged him with using a fraudulent social security card to obtain employment. Meanwhile, Mr. Pereida declined to offer any competing evidence of his own. In light of this state of proof, the immigration judge found that Mr. Pereida‘s conviction had nothing to do with carrying on an unlicensed business in violation of subsection (c) and everything to do with the fraudulent (and thus disqualifying) conduct made criminal by subsections (a), (b), or (d).
Mr. Pereida‘s efforts to undo this ruling proved unsuccessful. Both the Board of Immigration Appeals (BIA) and the Eighth Circuit agreed with the immigration judge that Nebraska‘s statute contains different subsections describing different crimes. Pereida v. Barr, 916 F. 3d 1128, 1131, 1133 (2019). They agreed, too, that subsections (a), (b), and (d) set forth crimes involving moral turpitude, while subsection (c) does not. At the same time, both found the case a little more complicated than the immigration judge thought. While the government‘s evidence revealed that
It is this judgment Mr. Pereida asks us to reverse. In his view, Congress meant for any ambiguity about an alien‘s prior convictions to work against the government, not the alien. The circuits have disagreed on this question, so we granted certiorari to resolve the conflict. 589 U. S. ___ (2019).
II
A
Like any other, Mr. Pereida‘s claims about Congress‘s meaning or purpose must be measured against the language it adopted. And there, a shortcoming quickly emerges. The INA states that “[a]n alien applying for relief or protection from removal has the burden of proof to establish” that he “satisfies the applicable eligibility requirements” and that he “merits a favorable exercise of discretion.”
It turns out that Mr. Pereida actually agrees with much of this. He accepts that he must prove three of the four statutory eligibility requirements (his longstanding presence in the country, his good moral character, and extreme hardship on a relative). He does not dispute that ambiguity on these points can defeat his application for relief. It is only when it comes to the final remaining eligibility requirement at issue here—whether he was convicted of a disqualifying offense—that Mr. Pereida insists a different rule should apply. Yet, he identifies nothing in the statutory text singling out this lone requirement for special treatment. His concession that an alien must show his good moral character undercuts his argument too. Ambiguity about a conviction for a crime involving moral turpitude would appear to defeat an assertion of “good moral character.” Cf.
What the statute‘s text indicates, its context confirms. Consider three nearby provisions. First, the INA specifies particular forms of evidence that “shall constitute proof of a criminal conviction,” including certain official records of conviction, docket entries, and attestations.
Next, when it comes to “removal proceedings,” the INA assigns the government the “burden” of showing that the alien has committed a crime of moral turpitude in certain
Finally, the INA often requires an alien applying for admission to show “clearly and beyond doubt” that he is “entitled to be admitted and is not inadmissible.”
B
Confronted now with a growing list of unhelpful textual clues, Mr. Pereida seeks tо shift ground. Even if he must shoulder the burden of proving that he was not convicted of a crime involving moral turpitude, Mr. Pereida replies, he can carry that burden thanks to the so-called “categorical approach.”
The Court first discussed the categorical approach in the criminal context, but it has since migrated into our INA cases. Following its strictures, a court does not consider the
In Mr. Pereida‘s view, the categorical approach makes all the difference. It does so because Nebraska‘s statute criminalizes at least some conduct—like carrying on a business without a license—that doesn‘t necessarily involve fraud. So what if Mr. Pereida actually committed fraud? Under the categorical approach, that is beside the point. Because a person, hypothetically, could violate the Nebraska statute without committing fraud, the statute does not qualify as a crime involving moral turpitude. In this way, Mr. Pereida submits, he can carry any burden of proof the INA assigns him.
This argument, however, overstates the categorical approach‘s preference for hypothetical facts over real ones. In order to tackle the hypothetical question whether one might complete Mr. Pereida‘s offense of conviction without doing something fraudulent, a court must have some idea what
The factual inquiry can take on special prominence when it comes to “divisible” statutes. Some statutes state only a single crime, often making it a simple thing for a judge to conclude from a defendant‘s criminal records that he was convicted of violating statute x and thus necessarily convicted of crime x. Not infrequently, however, a single criminal statute will list multiple, stand-alone offenses, some of which trigger consequences under federal law, and others of which do not. To determine exactly which offense in a divisible statute an individual committed, this Court has told judges to employ a “modified” categorical approach, “review[ing] the record materials to discover which of the enumerated alternatives played a part in the defendant‘s prior conviction.” Mathis v. United States, 579 U. S. ___, ___ (2016) (slip op., at 12, 16). In aid of the inquiry, we have said, judges may consult “a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of.” Id., at ___ (slip op., at 4).
These nuances expose the difficulty with Mr. Pereida‘s
Mr. Pereida failed to carry that burden. Before the immigration judge, he refused to produce any evidence about his crime of conviction even after the government intrоduced evidence suggesting that he was convicted under a statute setting forth some crimes involving fraud. Nor has Mr. Pereida sought a remand for another chance to resolve the ambiguity by introducing evidence about his crime of conviction; at oral argument, he even disclaimed interest in the possibility. See Tr. of Oral Arg. 23–25. These choices may be the product of sound strategy, especially if further evidence would serve only to show that Mr. Pereida‘s crime of conviction did involve fraud. But whatever degree of ambiguity remains about the nature of Mr. Pereida‘s conviction, and whatever the reason for it, one thing remains stubbornly evident: He has not carried his burden of showing that he was not convicted of a crime involving moral turpitude.
Look at the problem this way. Mr. Pereida is right that, when asking whether a state conviction triggers a federal
The INA‘s plain terms confirm the point. Recall that the INA places the “burden of proof” on an alien like Mr. Pereida to show four things; that one of these is the absence of a disqualifying conviction; and that the law specifies certain forms of evidence “shall” constitute “proof” of a criminal conviction. See Part II–A, supra. In each of these ways, the statutory scheme anticipates the need for evidentiary proof about the alien‘s crime of conviction and imposes on the alien the duty to present it.5
The INA adopts this approach for understandable reasons too. Not only is it impossible to discern an individual‘s offense of conviction without consulting at least some documentary or testimonial evidence. It‘s easy to imagine significant factual disputes that make these statutory instructions about the presentation of evidence and the burden of proof critically important. Suppose, for example, that the parties in this case disputed whether the criminal complaint the government introduced involved a different Clemente Avelino Pereida. Alternatively, what if Nebraska‘s complaint charged Mr. Pereida with a violation of subsection (c) but the plea colloquy mentioned only subsection (d)? Or what if the relevant records were illegible or contained a material typo? Courts can resolve disputes like these only by reference to evidеnce, which means a statutory allocation of the burden of proof will sometimes matter a great deal.
To reach a different conclusion would require us to cast a blind eye over a good many precedents. When applying the categorical approach, this Court has long acknowledged that to ask what crime the defendant was convicted of committing is to ask a question of fact. See, e.g., Taylor, 495 U. S., at 600 (courts look “to the fact that the defendant had been convicted of crimes falling within certain categories“).
Really, this Court has never doubted that thе who, what, when, and where of a conviction—and the very existence of a conviction in the first place—pose questions of fact. Nor have we questioned that, like any other fact, the party who bears the burden of proving these facts bears the risks associated with failing to do so.6
The authorities Mr. Pereida invokes do not teach differently. He directs our attention especially to Moncrieffe v. Holder, 569 U. S. 184 (2013), Carachuri-Rosendo v. Holder, 560 U. S. 563 (2010), and Johnson v. United States, 559 U. S. 133 (2010). But the first two cases addressed only the question whether the minimum conduct needed to commit an alien‘s known offense of conviction categorically triggered adverse federal consequences. Neither addressed the threshold factual question at issue here—which crime formed the basis of the alien‘s prior conviction.
The final case is no more helpful to Mr. Pereida. Johnson involved a criminal prosecution under the Armed Career Criminal Act (ACCA) in which the government bore the burden of proof. There, “nothing in the record” indicated which of several crimes in a divisible statute the defendant had been convicted of committing. Id., at 137. Accordingly, if it wished to win certain sentencing enhancements, the government had to show that all of the statute‘s offenses met the federal definition of a “‘violent felony.‘” Ibid. Here, by contrast, Mr. Pereida bears the burden of proof and the same logic applies to him. We do not doubt that, when the record is silent on which of several crimes in a divisible statute an alien committed, he might succeed by showing that7
C
This leaves Mr. Pereida to his final redoubt. Maybe the INA works as we have described. But, Mr. Pereida worries, acknowledging as much would invite “grave practical difficulties.” Brief for Petitioner 43. What if the alien‘s record of conviction is unavailable or incomplete through no fault of his own? To deny aliens relief only because of poor state court record-keeping practices would, he submits, make for inefficient and unfair public policy. The dissent expands on these same policy arguments at length. See post, at 14–16.
Notably, though, neither Mr. Pereida nor the dissent suggests that record-keeping problems attend this case. Mr. Pereida‘s immigration proceedings progressed in tandem with his criminal case, so it is hard to imagine how he could have been on better notice about the need to obtain and preserve relevant state court records about his crime. Represented by counsel in both proceedings, hе had professional help with these tasks too. We know that relevant records
Still, even accepting that graver record-keeping problems will arise in other cases, it is not clear what that might tell us. Record-keeping problems promise to occur from time to time regardless who bears the burden of proof. And, as in most cases that come our way, both sides can offer strong policy arguments to support their positions. Mr. Pereida and the dissent say fairness and efficiency would be better served if the government bore the risk of loss associated with record-keeping difficulties. Meanwhile, the government contends that it is important for the burden of proof to rest with the alien so those seeking discretionary relief cannot gain a tactical advantage by withholding or concealing evidence they possess about their own convictions. It is hardly this Court‘s place to pick and choose among competing policy arguments like these along the way to selecting whatever outcome seems to us most congenial, efficient, or fair. Our license to interpret statutes does not include the power to engage in such freewheeling judicial policymaking. Congress was entitled to conclude that uncertainty about an alien‘s prior conviction should not redound to his benefit. Only that policy choice, embodied in the terms of the law Congress adopted, commands this Court‘s respect.
It seems, too, that Mr. Pereida may have overlooked some of the tools Congress afforded aliens faced with record-keeping challenges. In the criminal context, this Court has said that judges seeking to ascertain the defendant‘s crime of conviction should refer only to a “limited” set of judicial records. Shepard, 544 U. S., at 20–23. In part, the Court has circumscribed the proof a judge may consult out of concern for the defendant‘s Sixth Amendment right to a trial by jury. If a judge, rather than a jury, may take evidence and make findings of fact, the thinking goes, the proceeding
*
Under the INA, certain nonpermanent aliens seeking to cancel a lawful removal order must prove that they have not been convicted of a disqualifying crime. The Eighth Circuit correctly held that Mr. Pereida failed to carry this burden. Its judgment is
Affirmed.
JUSTICE BARRETT took no part in the consideration or decision of this case.
This case, in my view, has little or nothing to do with burdens of proof. It concerns the application of what we have called the “categorical approach” to determine the nature of a crime that a noncitizen (or defendant) was previously convicted of committing. That approach sometimes allows a judge to look at, and to look only at, certain specified documents. Unless those documents show that the crime of conviction necessarily falls within a certain category (here a “crime involving moral turpitude“), the judge must find that the conviction was not for such a crime. The relevant documents in this case do not show that the previous conviction at issue necessarily was for a crime involving moral turpitude. Hence, applying the categorical approach, it was not. That should be the end of the case.
I
Mr. Pereidа is a citizen of Mexico, not the United States. He has lived in the United States for roughly 25 years. In that time, he and his wife have raised three children. He helped support them by working in construction and cleaning. One child is a U. S. citizen. In 2009 the Department of Homeland Security issued a notice to appear that
Mr. Pereida, in 2010, pleaded nolo contendere to, and was found guilty of, having committed a Nebraska state crime, namely, attempt to commit criminal impersonation in violation of
II
A
I believe we must answer this question by applying what we have called the “categorical approach.” The Immigration and Nationality Act (INA) makes a noncitizen ineligible for cancellation of removal if that noncitizen has been “convicted” of certain “offense[s],”
We have answered this question clearly and repeatedly in both the INA and ACCA contexts. We have held that both statutes mandate a categorical approach by asking what offense a person was “convicted” of, not what acts he “committed.” Moncrieffe v. Holder, 569 U.S. 184, 191 (2013) (emphasis added) (discussing the INA); see also Taylor v. United States, 495 U. S. 575, 600 (1990) (discussing ACCA). The categorical approach requires courts to “loo[k] only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions.” Id., at 600; see also Esquivel-Quintana v. Sessions, 581 U. S. 385 (2017) (slip op., at 2-3) (applying the categorical approach under the INA); Mellouli v. Lynch, 575 U. S. 798, 804-806 (2015) (same); Moncrieffe, 569 U. S., at 190 (same); Carachuri-Rosendo v. Holder, 560 U. S. 563, 576 (2010) (same); Gonzales v. Duenas-Alvarez, 549 U. S. 183, 185-186 (2007) (same); Mathis v. United States, 579 U. S. 500 (2016) (slip op., at 3) (applying the categorical approach under ACCA); Johnson v. United States, 559 U. S. 133, 144 (2010) (same); Descamps v. United States, 570 U. S. 254, 257 (2013) (same); Shepard v. United States, 544 U. S. 13, 19-20 (2005) (same); Taylor, 495 U. S., at 600 (same). A judge, looking at a prior conviction, will read the statutory definition of the offense of conviction and decide whether anyone convicted under that offense is necessarily guilty of the type of crime that triggers federal penalties, e.g., an enhanced sentence or ineligibility for cancellation of removal. See Mellouli, 575 U. S., at 805; Taylor, 495 U. S., at 600.
Consider a hypothetical example of this approach. Suppose a noncitizen‘s previous conviction was for violating
Difficult questions can arise when judges apply the categorical approach. State statutes criminalize many kinds of behavior, often differing in detail one from another. Take burglary, for example, which is an “aggravated felony” under the INA.
And what is a judge to do if a state statute is “divisible”
What if, after looking at all the sources we have listed, the judge still does not know which of the three different kinds of burglary was the basis for the conviction? Suppose all the relevant documents that exist speak only of a violation of §123. Period. What then? As discussed infra, at 9, that is the question we face here, and our cases provide the answer. The judge cannot look at evidence beyond the specified court records. See, e.g., Mathis, 579 U. S., at 518-519 (slip op., at 18). Instead, in such a case, the judge is to determine
The purpose of the modified categorical approach, like the categorical approach it helps implement, is to compare what “was necessarily found or admitted” to the elements of the generic federal offense. Id., at 505 (slip op., at 4). If the record materials do not specify that the defendant was convicted of §123(a) (dwelling) rather than §123(b) (boat) or §123(c) (railroad car), or if the record materials do not exist at all, then the sentencing judge cannot say that generic burglary was necessarily found or admitted. The Court has said as much before. In Shepard, the Court acknowledged that both the “vagaries of abbreviated plea records” and the destruction of “stenographic notes” of a jury charge would preclude the application of ACCA. 544 U. S., at 22. In Mathis, the Court explained that if the “record materials” do not “speak plainly,” then “a sentencing judge will not be able to satisfy Taylor‘s demand for certainty’ when determining whether a defendant was convicted of a generic offense.” 579 U. S., at 519 (slip op., at 18). And we applied this principle in Johnson, holding that a prior conviction did not count as a “violent felony” under ACCA because the statute of conviction swept more broadly than a “violent felony” and “nothing in the record of [the] conviction permitted the District Court to conclude that it rested upon anything more than the least of th[e] acts” prohibited by the state statute. See 559 U. S., at 137; see also id., at 145 (“[I]n many cases state and local records from” state convictions “will be incomplete” and “frustrate application of the modified categorical approach“).
That is to say, if (as far as the available, listed documents reveal) the judge could have entered the conviction without the noncitizen admitting to burglarizing a dwelling, then the immigration judge cannot hold that the conviction is
B
Why would Congress have chosen such a seemingly complicated method? The method would appear sometimes to lead to counterintuitive results. After all, if the prior crime is for burglary and the offense occurred in a small town near the Mojave Desert, it seems unlikely that the conviction was based on burglary of a boat. Yet, in the absence of an indication from the permissible documents that the conviction necessarily was for burglary of a dwelling, the judge cannot classify the crime of conviction as an “aggravated felony.”
The primary reason for choosing this system lies in practicality. Immigration judges and sentencing judges have limited time and limited access to information about prior convictions. See Mellouli, 575 U. S., at 806; Moncrieffe, 569 U. S., at 200-201; Shepard, 544 U. S., at 23, n. 4. The vast majority of prior convictions reflect simple guilty pleas to the crime charged, and, where the record papers are silent, efforts to uncover which of several crimes was “really” at issue can force litigation that the guilty plea avoided. Suppose that the defendant in the Mojave Desert pleaded guilty to a violation of §123 and there is no indication in the relevant record documents which subsection was the basis fоr the conviction. To find out which of the several provisions was the basis for the conviction, it might be necessary to call as witnesses the defendant, the prosecutor, or even the judge, and question them about a criminal proceeding that perhaps took place long ago. To make his case, the defendant might now deny that the provision involving a dwelling was at issue, and he might seek the opportunity to prove that. As a result, the immigration judge or sentencing
I do not know how often this kind of counterintuitive example will arise. But I do know that, in such a case, there is a safeguard against the harms that the “prior conviction” provisions are designed to stop. In the INA context, if a noncitizen is eligible for cancellation of removal, the Attorney General has discretionary power to cancel the removal order. Where he believes the noncitizen in fact previously burgled a dwelling (or worse), he can simply deny relief. And in the ACCA context, a sentencing judge, even where ACCA is inapplicable, has some discretion in determining the length of a sentence. If he finds that the present defendant in fact burgled, say, a dwelling and not a boat, he can take that into account even if the sentencing enhancement does not apply.
And most importantly, whatever the costs and benefits of the categorical аpproach, it is what Congress has long chosen with respect to both statutes. The categorical approach has a particularly “long pedigree in our Nation‘s immigration law,” tracing back to 1913. Moncrieffe, 569 U. S., at 191. As the majority acknowledges, “Congress could have (and sometimes has) used statutory language requiring courts to ask whether the defendant‘s actual conduct meets certain specified criteria.” Ante, at 8, n. 2. But it has not done so in the INA provision here. See ante, at 8. Thus, here, as in the case of ACCA, a judge must ask whether “a conviction of the state offense “necessarily” involved ... facts equating to” the kind of behavior that the relevant federal statute forbids. Moncrieffe, 569 U. S., at 190 (emphasis added). Only if it did does that conviction trigger federal penalties.
Now, let us apply the categorical approach to the conviction here at issue. The criminal complaint says that Mr. Pereida “intentionally engage[d] in conduct which . . . constituted a substantial step in a course of conduct intended to culminate in his commission of the crime of CRIMINAL IMPERSONATION R.S. 28-608, Penalty: Class IV Felony.” App. to Brief for Petitioner 7a. It then quotes the entire criminal-impersonation statute, including all of its parts. See id., at 7a-8a. The complaint does not say which part of the statutory provision the State accuses Mr. Pereida of violating. And the majority, like the Government, concedes that some of the provisions set forth crimes that are not crimes involving moral turpitude. See ante, at 10; Brief for Respondent 15.
The journal entry and order related to the charge do not help. They say only that Mr. Pereida pleaded “no contest” to the crime charged, identifying the relevant statute as
As far as we know, all appropriate documents that exist were before the Immigration Judge. None shows that Mr. Pereida‘s conviction necessarily involved facts equating to a crime involving moral turpitude. He may have pleaded guilty to a crime involving moral turpitude or he may not have. We do not know. The Immigration Judge thus cannot characterize the conviction as a conviction for a crime involving moral turpitude. That resolves this case.
How does the majority argue to the contrary? The majority says that this case is different because which crime was the basis of a prior conviction is a factual question that the categorical approach cannot answer and a noncitizen seeking cancellation of removal, unlike a criminal defendant, bears the burden of proof on that factual question.
First, the majority says that what the defendant‘s ”actual offense of conviction was,” is a “threshold factual” question that a court must resolve before tackling the categorical approach‘s ”hypothetical question” (could someone complete the offense of conviction without committing a crime involving moral turpitude). Ante, at 8-9, 14. In my view, there is no unresolved “threshold factual” question in this case since there is no dispute that Mr. Pereida has a prior conviction. We have made clear that unless the offense of conviction, as determined from the statute and the specified documents, is necessarily a crime involving moral turpitude, the judge must rule that the conviction was not for a crime involving moral turpitude. The method for determining the offense of conviction (the modified categorical approach) “acts not as an exception, but instead as a tool,” retaining “the categorical approach‘s central feature.” Descamps, 570 U. S., at 263. Here, looking at the pertinent documents, we can conclude only that Mr. Pereida pleaded guilty to the minimum conduct necessary to complete an offense under
This question is the central question the categorical approach resolves, not a threshold question. And it is a legal question, not a factual one. To answer it, the judge is to examine the state statute and limited portions of the record that our cases specify and determine from those documents whether the crime of conviction was a crime involving moral turpitude. There is nothing at all unusual about referring
The majority points out that we have occasionally referred to the “‘fact of a prior conviction.‘” Ante, at 13. The majority reads too much into that reference. All that we have seriously referred to as a fact is the ”mere fact of conviction.” Taylor, 495 U. S., at 602 (emphasis added). Establishing that basic fact is, of course, a prerequisite to application of the categorical approach at all. It goes to “the validity of a prior judgment of conviction.” Apprendi v. New Jersey, 530 U. S. 466, 496 (2000). But the mere fact of conviction is not at issue here. Instead, the question here (and the question the categorical approach asks) is “what [that] conviction necessarily established.” Mellouli, 575 U. S., at 806. We have referred to that question as a “legal question.” Ibid. And rightly so. Thus, if the majority applies the categorical approach, it should agree that there is no factual dispute in this case for any burden of proof to resolve. If the majority does not apply the categorical apрroach, it does not explain that or why.
Second, the majority points to statutory language stating that an applicant for relief from removal “has the burden of proof to establish” that he “satisfies the applicable eligibility requirements,”
This conclusion is consistent with the text. The statutory text itself “singl[es] out this lone requiremеnt for special treatment,” ante, at 6, by using a term (“conviction“) that requires application of a categorical rather than factual analysis. The burden-of-proof provision does not require departing from our settled understanding of the meaning of that term. That the categorical approach applies does not mean that the burden of proof is entirely irrelevant to the requirement that a noncitizen not have a disqualifying prior conviction. The burden of proof may be relevant when “the existence of [a] conviction” is in doubt. See
In my view, the “textual clues” and “statutory signals” relied on by the majority further demonstrate that burdens of proof are not relevant to the question at hand. See ante, at 7, 11, n. 5. As the majority points out, the INA sets forth a list of particular materials that, the INA says, “shall constitute proof of a criminal conviction.”
I agree with the majority that bearing the burdеn of proof goes hand in hand with being able to introduce this evidence. But in my view, Mr. Pereida cannot introduce this evidence because it goes beyond the limited record our precedents allow. Hence, he must not bear the burden of proof. The majority‘s response is that there is no limitation on the documents an immigration judge can look at when applying the categorical approach. That is because, the majority says, the limitation was adopted in the criminal context out of a concern for Sixth Amendment rights that is not present
At a minimum, I would not hold, in this case, that the categorical approach‘s limitation on the documents a judge can consult is inapplicable in immigration proceedings. That argument was neither raised nor briefed by the parties. The Government confirmed several times at oral argument that it had not argued that a judge should be allowed to look at a broader array of evidentiary materials because, in its view, that issue was not implicated since no other documents exist. See Tr. of Oral Arg. 34, 46, 56.
V
The majority does not apply the categorical approach as our cases have explained it and used it. So what happens now? I fear today‘s decision will result in precisely the practical difficulties and potential unfairness that Congress intended to avoid by adоpting a categorical approach.
First, allowing parties to introduce a wide range of documentary evidence and testimony to establish the crime of conviction may undermine the “judicial and administrative efficiency” that the categorical approach is intended to promote. Moncrieffe, 569 U. S., at 200. As we have recognized before, “[a]sking immigration judges in each case to determine the circumstances underlying a state conviction would burden a system in which ‘large numbers of cases [are resolved by] immigration judges and front-line immigration officers, often years after the convictions.‘” Mellouli, 575 U. S., at 806 (alterations in original). The same is true here. In cases where noncitizens are able to introduce evidence of their crime of conviction, immigration judges now may have to hear and weigh testimony from, for example, the prosecutor who charged the noncitizen or the court reporter who transcribed the now-lost plea colloquy. Given the vast number of different state misdemeanors, plea agreements made long ago, cursory state records, and state prosecutors or other officials who have imperfect memories or who have long since departed for other places or taken up new occupations, there is a real risk of adding time and complexity to immigration proceedings. Such hearings may add strain to “our Nation‘s overburdened immigration courts.” Moncrieffe, 569 U. S., at 201.
Second, today‘s decision may make the administration of immigration law less fair and less predictable. One virtue
Third, today‘s decision risks hinging noncitizens’ eligibility for relief from removal on the varied charging practices of state prosecutors. In some cases (perhaps even this one), state prosecutors and state courts may treat statutes that
The Court dismisses these “policy” concerns on the ground that Congress has chosen “to conclude that uncertainty about an alien‘s prior conviction should not redound to his benefit.” Ante, at 16. But Congress made precisely the opposite choice by tying ineligibility for relief to a noncitizen‘s “conviction.” That text mandates a categorical approach in which uncertainty about a conviction redounds to a noncitizen or defendant‘s benefit. The approach is underinclusive by design, and the majority‘s “objection to th[e] categorical approach‘s] underinclusive result is little more
Finally, it makes particularly little sense to disregard this core feature of the categorical approach here. See id., at 203-204. As already noted, cancellation of removal is discretionary. Thus, when a conviction is not disqualifying under the categorical approach, the Government may still deny the noncitizen relief. If it turns out that an individual with a record like the one here in fact violated the statute in a reprehensible manner, that can be accounted for during the discretionary phase of the proceedings, when the categorical approach does not apply.
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In my view, the Court should follow Congress’ statute. Congress has long provided that immigration courts applying the INA provision here, like sentencing courts applying ACCA, must follow the categorical approach. See Mellouli, 575 U. S., at 805-806. Our cases make clear how that approach applies in a case like this one. We should follow our earlier decisions, particularly Taylor, Shepard, and Johnson. And, were we to do so, ineluctably they would lead us to determine that the statutory offense of which Mr. Pereida was “convicted” is not “necessarily” a “crime involving moral turpitude.”
Because the Court comes to a different conclusion, with respect, I dissent.