Pereida v. Wilkinson

P R E L I M I N A R Y P R I N T
Volume 592 U. S. Part 2
Pages 224–260
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
March 4, 2021
REBECCA A. WOMELDORF
reporter of decisions
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N O T I C E : This preliminary print is subject to formal revision before
the bound volume is published. Users are requested to notify the Reporter
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pio@supremecourt.gov, of any typographical or other formal errors.

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224 OCTOBER
TERM, 2020
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 offcials 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 es-
tablish his eligibility for cancellation of removal, a discretionary form
of relief under the Immigration and Nationality Act (INA). 8 U. S. C.
§§ 1229a(c)(4), 1229b(b)(1). Eligibility requires certain nonpermanent
residents to prove, among other things, that they have not been con-
victed of specifed criminal offenses. § 1229b(b)(1)(C). While his pro-
ceedings were pending, Mr. Pereida was convicted of a crime under Ne-
braska state law. See Neb. Rev. Stat. § 28–608 (2008). Analyzing
whether Mr. Pereida's conviction constituted a “crime involving moral
turpitude” that would bar his eligibility for cancellation of removal,
§§ 1182(a)(2)(A)(i)(I), 1227(a)(2)(A)(i), the immigration judge found that
the Nebraska statute stated several separate crimes, some of which in-
volved moral turpitude and one—carrying on a business without a re-
quired license—which did not. Because Nebraska had charged Mr. Per-
eida with using a fraudulent social security card to obtain employment,
the immigration judge concluded that Mr. Pereida's conviction was likely
not for the crime of operating an unlicensed business, and thus the con-
viction likely constituted a crime involving moral turpitude. The Board
of Immigration Appeals and the Eighth Circuit concluded that the rec-
ord did not establish which crime Mr. Pereida stood convicted of violat-
ing. But because Mr. Pereida bore the burden of proving his eligibility
for cancellation of removal, the ambiguity in the record meant he had
not carried that burden and he was thus ineligible for discretionary
relief.
Held: Under the INA, certain nonpermanent residents seeking to cancel
a lawful removal order bear the burden of showing they have not been
convicted of a disqualifying offense. An alien has not carried that bur-
den when the record shows he has been convicted under a statute list-
ing multiple offenses, some of which are disqualifying, and the record
is ambiguous as to which crime formed the basis of his conviction.
Pp. 231–243.

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225
Syllabus
(a) The INA squarely places the burden of proof on the alien to prove
el
igibility for relief from removal. § 1229a(c)(4)(A). Mr. Pereida ac-
cepts his burden to prove three of four statutory eligibility require-
ments but claims a different rule should apply to the fnal requirement
at issue here—whether he was convicted of a disqualifying offense.
Mr. Pereida identifes nothing in the statutory text that singles out that
lone requirement for special treatment. The plain reading of the text
is confrmed by the context of three nearby provisions. First, the INA
specifes particular forms of evidence that “shall constitute proof of a
criminal conviction” in “any proceeding under this chapter,” regardless
of whether the proceedings involve efforts by the government to remove
an alien or efforts by the alien to establish eligibility for relief.
§ 1229a(c)(3)(B). Next, Congress knows how to impose the burden on
the government to show that an alien has committed a crime of moral
turpitude, see §§ 1229a(c)(3), 1227(a)(2)(A)(i), and yet it chose to fip the
burden when it comes to applications for relief from removal. Finally,
the INA often requires an alien seeking admission to show “clearly and
beyond doubt” that he is “entitled to be admitted and is not inadmissi-
ble,” § 1229a(c)(2), which in turn requires the alien to demonstrate that
he has not committed a crime involving moral turpitude, § 1182(a)(2)
(A)(i)(I). Mr. Pereida offers no account why a rational Congress would
have placed this burden on an alien who is seeking admission, but lift it
from an alien who has entered the country illegally and faces a lawful
removal order. Pp. 231–233.
(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 a 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 divis-
ible, setting forth multiple crimes, some of which the parties agree are
crimes of moral turpitude. In cases involving divisible statutes, the
Court has told judges to determine which of the offenses an individual
committed by employing a “modifed” 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

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226 PEREID
A v. WILKINSON
Syllabus
States, 579 U. S. 500, 513, 517. This determination, like many issues
surroundi
ng the who, what, when, and where of a prior conviction, in-
volves questions of historical fact. The party who bears the burden of
proving these facts bears the risks associated with failing to do so.
This point is confrmed by the INA's terms and the logic undergirding
them. A different conclusion would disregard many precedents. See,
e. g., Taylor v. United States, 495 U. S. 575, 600. Just as evidentiary
gaps work against the government in criminal cases where it bears the
burden, see, e. g., Johnson v. United States, 559 U. S. 133, they work
against the alien seeking relief from a lawful removal order. Congress
can, and has, allocated the burden differently. Pp. 233–240.
(c) It is not this Court's place to choose among competing policy argu-
ments. Congress was entitled to conclude that uncertainty about an
alien's prior conviction should not redound to his beneft. And Mr. Per-
eida fails to acknowledge some of the tools Congress seemingly did af-
ford aliens faced with record-keeping challenges. See, e. g., § 1229a(c)
(3)(B). Pp. 240–243.
916 F. 3d 1128, affrmed.
Gorsuch, J., delivered the opinion of the Court, in which Roberts,
C. J., and Thomas, Alito, and Kavanaugh, JJ., joined. Breyer, J., fled a
dissenting opinion, in which Sotomayor and Kagan, JJ., joined, post, p. 243.
Barrett, J., took no part in the consideration or decision of the case.
Brian P. Goldman argued the cause for petitioner. With
him on the briefs were Kory DeClark, E. Joshua Rosen-
kranz, David V. Chipman, Raul F. Guerra, Thomas M.
Bondy, and Benjamin P. Chagnon.
Jonathan C. Bond argued the cause for the respondent.
With him on the brief were Solicitor General Francisco, As-
sistant Attorney General Hunt, Deputy Solicitor General
Kneedler, Donald E. Keener, John W. Blakeley, and Patrick
J. Glen.*
*Briefs of amici curiae urging reversal were fled for Former United
States Immigration Judges et al. by David G. Keyko; for the Immigrant
Defense Project et al. by Jayashri Srikantiah; and for the National Asso-
ciation of Criminal Defense Lawyers et al. by David Lesser, Jenny Rob-
erts, Joshua L. Dratel, and Daniel L. Kaplan.
Lawrence J. Joseph and Christopher J. Hajec fled a brief for the Immi-
gration Reform Law Institute as amicus curiae urging affrmance.
Alina Das and Nancy Morawetz fled a brief for Immigration Law Pro-
fessors as amici curiae.

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Opinion of the Court
Justice Gorsuch delivered the opinion of the Court.
E
veryone agrees that Clemente Avelino Pereida entered
this country unlawfully, and that the government has se-
cured a lawfu l order direc ti ng h is remova l. The only
remaining question is whether Mr. Pereida can prove his eli-
gibility for discretionary relief.
Under the Immigration and Nationality Act (INA), indi-
viduals 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 ad-
mits 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, thanks to
this ambiguity, he remains eligible for relief.
Like the Eighth Circuit, we must reject Mr. Pereida's ar-
gument. 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 con-
victed of a disqualifying criminal offense.
I
The INA governs how persons are admitted to, and re-
moved from, the United States. Remova l proceedings
begin when the government fles a charge against an individ-
ual, and they occur before a hearing offcer at the Depart-
ment of Justice, someone the agency refers to as an immigra-
tion judge. If the proof warrants it, an immigration judge
may order an individual removed for, say, entering the coun-
try unlawfully or committing a serious crime while here.
See 8 U. S. C. §§ 1229a, 1182(a), 1227(a).
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. §§ 1229a(c)(4),
1229b(b)(1). To be eligible for this form of relief, a nonper-
manent resident alien like Mr. Pereida must prove four
things: (1) he has been present in the United States for at

228 PEREID
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least 10 years; (2) he has been a person of good moral charac-
ter;
(3) he has not been convicted of certain criminal offenses;
and (4) his removal would impose an “exceptional and
extremely unusual” hardship on a close relative who is
either a citizen or permanent resident of this country.
§§ 1229b(b)(1), 1229a(c)(4). Establishing all this still yields
no guarantees; it only renders an alien eligible to have his
removal order cancelled. The Attorney General may choose
to grant or withhold that relief in his discretion, limited by
Congress's command that no more than 4,000 removal orders
may be cancelled each year. § 1229b(e).
This narrow pathway to relief proved especially challeng-
ing 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 eligibil-
ity 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 a
crime. Because the outcome of that case had the potential
to affect Mr. Pereida's eligibility for cancellation of removal,
counsel asked the immigration judge to postpone any further
proceedings on Mr. Pereida's application for relief until the
criminal case concluded. The immigration judge agreed.
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
beneft . . . or to deceive or harm another;
“(b) Pretends to be a representative of some person
or organization and does an act in his or her pretended
capacity with the intent to gain a pecuniary beneft . . .
and to deceive or harm another;
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Opinion of the Court
“(c) Carries on any profession, business, or any other
occupati
on without a license, certifcate, or other au-
thorization required by law; or
“(d) Without the authorization . . . of another and with
the intent to deceive or harm another: (i) Obtains or rec-
ords . . . personal identifying information; and (ii) Ac-
cesses or attempts to access the fnancial resources of
another through the use of . . . personal identifying infor-
mation for the purpose of obtaining credit, money . . . or
any other thing of value.” Neb. Rev. Stat. § 28–608
(2008) (since amended and moved to Neb. Rev. Stat.
§ 28–638).
Ultimately, Mr. Pereida was found guilty, and this con-
viction loomed large when his immigration proceedings re-
sumed. Before the immigration judge, everyone accepted
that Mr. Pereida's eligibility for discretionary relief de-
pended on whether he could show he had not been convicted
of certain crimes, including ones “involving moral turpi-
tude. ” 8 U. S. C. §§ 1182(a)(2)(A)(i)(I), 1227(a)(2)(A)(i),
1229b(b)(1)(C). And whatever else one might say about that
phrase, the parties took it as given that a crime involving
“fraud [as] an ingredient” qualifes as a crime involving
“moral turpitude.” Jordan v. De George, 341 U. S. 223, 227
(1951).
The parties' common ground left Mr. Pereida with an up-
hill climb. As the immigration judge read the Nebraska
statute, subsections (a), (b), and (d) each stated a crime in-
volving fraud, and thus each constituted a disqualifying of-
fense of moral turpitude. That left only subsection (c)'s pro-
hibition 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 rea-
son 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
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230 PEREID
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Opinion of the Court
with using a fraudulent social security card to obtain employ-
ment.
Meanwhile, Mr. Pereida declined to offer any compet-
ing 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 unsuccess-
ful. Both the Board of Immigration Appeals (BIA) and the
Eighth Circuit agreed with the immigration judge that Ne-
braska'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 Nebraska
had charged Mr. Pereida with using a fraudulent social secu-
rity card to obtain employment, and while that evidence
would “seem to support a fnding that the crime underlying
[Mr. Pereida's] attempt offense involved fraud or deceit,”
the BIA and Court of Appeals observed that nothing in the
record definitively indicated which statutory subsection
Mr. Pereida stood convicted of violating. App. to Pet. for
Cert. 17a. Still, neither the agency nor the Eighth Circuit
could see how the absence of conclusive proof on this score
might make a difference. Mr. Pereida bore the burden of
proving his eligibility for relief, so it was up to him to show
that his crime of conviction did not involve moral turpitude.
Because Mr. Pereida had not carried that burden, he was
ineligible for discretionary relief all the same.
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
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granted certiorari to resolve the confict. 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 protec-
tion from removal has the burden of proof to establish” that
he “satisfes the applicable eligibility requirements” and that
he “merits a favorable exercise of discretion.” 8 U. S. C.
§ 1229a(c)(4)(A). To carry that burden, a nonpermanent res-
ident alien like Mr. Pereida must prove four things, including
that he “has not been convicted” of certain disqualifying
offenses, like crimes involving moral turpitude. § 1229b(b)
(1)(C). Thus any linger ing uncer tainty about whether
Mr. Pereida stands convicted of a crime of moral turpitude
would appear enough to defeat his application for relief, ex-
actly as the BIA and Eighth Circuit held.
It turns out that Mr. Pereida actually agrees with much of
this. He accepts that he must prove three of the four statu-
tory 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 fnal 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 identifes 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 in-
volving moral turpitude would seem to defeat an assertion
of “good moral character.” Cf. 8 U. S. C. § 1101(f )(3). And
if that's true, it's hard to see how the same ambiguity could
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help an alien when it comes to the closely related eligibility
requirement
at issue before us.
What the statute's text indicates, its context confrms.
Consider three nearby provisions. First, the INA specifes
particular forms of evidence that “shall constitute proof
of a criminal conviction,” including certain offcial records
of conviction, docket entries, and attestations. § 1229a(c)
(3)(B). These rules apply to “any proceeding under this
chapter” regardless whether the proceedings happen to in-
volve efforts by the government to remove an alien or efforts
by an alien to obtain relief. Ibid. In this way, the INA
anticipates both the need for proof about prior convictions
and the fact an alien sometimes bears the burden of supply-
ing it.
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
circumstances. See §§ 1229a(c)(3), 1227(a)(2)(A)(i). But the
burden fips for “[a]pplications for relief from removal,” like
the one at issue in this case. § 1229a(c)(4). These statutory
features show that Congress knows how to assign the gov-
ernment the burden of proving a disqualifying conviction.
And Congress's decision to do so in some proceedings, but
not in proceedings on an alien's application for relief, refects
its choice that these different processes warrant different
treatment.
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 i nadmissible. ”
§ 1229a(c)(2)(A). As part of this showing, an alien must
demonstrate that he has not committed a crime involving
moral turpitude. § 1182(a)(2)(A)(i)(I). In this context, it is
undisputed that an alien has the burden of proving that he
has not committed a crime of moral turpitude. And Mr. Per-
eida has offered no account why a rational Congress might
wish to place this burden on an alien seeking admission to
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Opinion of the Court
this country, yet lift it from an alien who has entered the
country
illegally and is petitioning for relief from a lawful
removal order.
1
B
Confronted now with a growing list of unhelpful textual
clues, Mr. Pereida seeks to 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 frst 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
facts of an individual's crime as he actually committed it.
Instead, a court asks only whether an individual's crime of
conviction necessarily—or categorically—triggers a particu-
lar consequence under federal law. The categorical ap-
proach is required, we have said, because the language found
in statutes like the INA provision before us don't task courts
with examining whether an individual's actions meet a fed-
eral standard like “moral turpitude,” but only whether the
individual “has. . . been convicted of an offense” that does so.
§§ 1229b(b)(1)(C) (emphasis added), 1227(a)(2)(A)(i); Taylor v.
United States, 495 U. S. 575, 600 (1990); Leocal v. Ashcroft,
543 U. S. 1, 7 (2004); United States v. Davis, 588 U. S. –––, –––
– ––– (2019).
2
1
The dissent does not seriously dispute any of this, but brushes it
aside as having “little or n[o]” importance only because of the “categori-
cal approach” discussed in the next section. Post, at 243 (opinion of
Breyer, J.).
2
Nothing requires Congress to employ the categorical approach. In-
stead of focusing our attention on the question whether an offense of con-
viction meets certain criteria, Congress could have (and sometimes has)
used statutory language requiring courts to ask whether the defendant's
actual conduct meets certain specifed criteria. See, e. g., Nijhawan v.
Holder, 557 U. S. 29, 41 (2009).
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In Mr. Pereida's view, the categorical approach makes all
the
difference. It does so because Nebraska's statute crimi-
nalizes 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 ap-
proach'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 his
actual offense of conviction was in the frst place. And to
answer that question, courts must examine historical facts.
No amount of staring at a State's criminal code will answer
whether a particular person was convicted of any particular
offense at any particular time. Applying the categorical ap-
proach thus 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?).
3
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 con-
3
It is unclear where the dissent stands on this point. In places, the
dissent seems to suggest that no “threshold” factual question exists here.
Post, at 252. Elsewhere, the dissent appears to admit that establishing
the “basic fact” of an individual's crime of conviction is a necessary prereq-
uisite to application of the categorical approach. Post, at 253. The sec-
ond view comes closer to the mark.
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Opinion of the Court
victed of crime x. Not infrequently, however, a single crimi-
na
l 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 “modifed” categorical approach, “re-
view[ing] the record materials to discover which of the enu-
merated alternatives played a part in the defendant's prior
conviction.” Mathis v. United States, 579 U. S. 500, 513, 517
(2016). In aid of the inquiry, we have said, judges may con-
sult “a limited class of documents (for example, the indict-
ment, jury instructions, or plea agreement and colloquy) to
determine what crime, with what elements, a defendant was
convicted of.” Id., at 505–506.
These nuances expose the diffculty with Mr. Pereida's ar-
gument. Both he and the government accept that Nebras-
ka's attempted criminal impersonation statute is divisible
because it states no fewer than four separate offenses in sub-
sections (a) through (d). The immigration judge, BIA, and
Eighth Circuit concluded that three of these subsections—
(a), (b), and (d)—constitute crimes of moral turpitude. So
that left Mr. Pereida with the burden of proving as a factual
matter that his conviction was for misusing a business li-
cense under subsection (c). To be sure, in this Court
Mr. Pereida now seeks to suggest that it is also possible for
a hypothetical defendant to violate subsection (a) without en-
gaging in conduct that involves moral turpitude under fed-
eral law. But even assuming he is right about this, it still
left him obliged to show in the proceedings below that he
was convicted under subsection (a) or (c) rather than under
(b) or (d).
Mr. Pereida failed to carry that burden. Before the immi-
gration judge, he refused to produce any evidence about his
crime of conviction even after the government introduced
evidence suggesting that he was convicted under a statute
setting forth some crimes involving fraud. Nor has Mr. Per-

236 PEREID
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eida sought a remand for another chance to resolve the ambi-
g
uity by introducing evidence about his crime of conviction;
at oral argument, he even disclaimed interest in the possibil-
ity. 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 convic-
tion 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 evi-
dent: 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
consequence, courts applying the categorical approach often
presume that a conviction rests on nothing more than the
minimum conduct required to secure a conviction. But
Mr. Pereida neglects to acknowledge that this presumption
cannot answer the question which crime the defendant was
convicted of committing. To answer that question, parties
and judges must consult evidence. And where, as here, the
alien bears the burden of proof and was convicted under a
divisible statute containing some crimes that qualify as
crimes of moral turpitude, the alien must prove that his ac-
tual, historical offense of conviction isn't among them.
4
4
The dissent makes the same mistake. At frst, it acknowledges that
courts must look to factual evidence to determine which of several offenses
in a divisible statute the defendant committed, and even admits we do not
know which of the offenses listed in the Nebraska statute Mr. Pereida
committed. Post, at 246–247, 250–251. But the dissent then does an
about-face—treating Nebraska's (divisible) statute as if it states a single
offense. Post, at 251–252. The dissent had it right the frst time. Both
sides agree that Nebraska's statute is divisible and states (at least) four
independent crimes. We do not know which of those crimes formed the
basis of Mr. Pereida's conviction because the record is ambiguous, and
Mr. Pereida has not supplied anything to clarify it. Mr. Pereida now at-
tempts to beneft from that uncertainty. But that proposition is fore-
closed by the INA's burden of proof.
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The INA's plain terms confrm the point. Recall that the
IN
A 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 specifes certain
forms of evidence “shall” constitute “proof ” of a criminal con-
viction. 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 conv ic ti on w ithout consu lti ng at least some
documentary or testimonial evidence. It's easy to imagine
signifcant factual disputes that make these statutory
instructions about the presentation of evidence and the bur-
den 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 Nebras-
ka's complaint charged Mr. Pereida with a violation of sub-
5
There are other statutory signals that point to the same conclusion.
The INA authorizes an immigration judge to make “credibility determina-
tion[s]” based on an alien's proof, § 1229a(c)(4)(C); it says the immigration
judge must determine whether “testimony is credible, is persuasive, and
refers to specifc facts suffcient to [discharge] the applicant's burden of
proof,” § 1229a(c)(4)(B); and the law requires the alien to comply with regu-
lations requiring him to “submit information or documentation” support-
ing his application for relief, ibid. Current regulations indicate that
an alien should describe on his application form any prior convictions he
may have, Dept. of Justice, Executive Offce for Immigration Review,
Form EOIR–42B, Application for Cancellation of Removal and Adjust-
ment of Status for Certain Nonpermanent Residents 5 (Rev. July
2016), https://www.justice.gov/sites/default/files/pages/attachments/2016/
10/20/eoir42b.pdf. In all of these additional ways, the INA again
anticipates the need for proof and the possibility of its challenge in
an application for relief—and nowhere does the statute suggest some spe-
cial carveout exists when it comes to evidence concerning prior
convictions.
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238 PEREID
A v. WILKINSON
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section (c) but the plea colloquy mentioned only subsec-
ti
on (d)? Or what if the relevant records were illegible or
contained a material typo? Courts can resolve disputes like
these only by reference to evidence, 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”). We
have described the modifed categorical approach as requir-
ing courts to “review . . . record materials” to determine
which of the offenses in a divisible statute the defendant was
convicted of committing. Mathis, 579 U. S., at 517. We
have acknowledged that this process calls on courts to con-
sider “extra-statutory materials” to “discover” the defend-
ant's crime of conviction. Descamps v. United States, 570
U. S. 254, 263 (2013). We have observed that these “materi-
als will not in every case speak plainly,” and that any linger-
ing ambiguity about them can mean the government will fail
to carry its burden of proof in a criminal case. Mathis, 579
U. S., at 519 (citing Shepard v. United States, 544 U. S. 13, 21
(2005)). And we have remarked that “the fact of a prior
conviction” supplies an unusual and “arguable” exception to
the Sixth Amendment rule in criminal cases that “any fact
that increases the penalty for a crime” must be proved to a
jury rather than a judge. Apprendi v. New Jersey, 530 U. S.
466, 489, 490 (2000).
Really, this Court has never doubted that the who, what,
when, and where of a conviction—and the very existence of
a conviction in the frst place—pose questions of fact. Nor
have we questioned that, like any other fact, the party who
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bears the burden of proving these facts bears the risks asso-
ciated
with failing to do so.
6
The authorities Mr. Pereida invokes do not teach differ-
ently. 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 frst two cases addressed only the ques-
tion whether the minimum conduct needed to commit an
alien's known offense of conviction categorically triggered
adverse federa l consequences. Neither addressed the
threshold factual question at issue here—which crime
formed the basis of the alien's prior conviction.
6
Practice in the criminal and INA contexts comports with practice in
other felds too. Often in civil litigation, a party must prove the fact of a
prior judgment on a particular claim or the fact of a ruling on a particular
issue. And there, as here, the question can turn on the persuasiveness of
the proof presented and on whom the burden of proof rests. So, for exam-
ple, the Restatement (Second) of Judgments, contemplates that parties
seeking to assert issue preclusion “ha[ve] the burden of proving ” that an
“an issue of fact or law” has been “actually litigated and determined by a
valid and fnal judgment.” § 27, and Comment f (1982). And “[i]f it can-
not be determined from the pleadings and other materials of record in the
prior action what issues, if any, were litigated and determined by the ver-
dict and judgment, extrinsic evidence is admissible to aid in such a deter-
mination. Extrinsic evidence may also be admitted to show that the rec-
ord in the prior action does not accurately indicate what issues, if any,
were litigated and determined.” Id., Comment f.
The dissent suggests its own analogy to contract law. See post, at
252. But it never explains why we should look there before the statutory
text or the law's customary treatment of judgments. Nor does the anal-
ogy succeed even on its own terms. It is “generally a question of fact for
the jury whether or not a contract . . . actually exists.” 11 R. Lord, Willis-
ton on Contracts § 30:3, pp. 37–39 (4th ed. 2012). So too, “[w]hen a written
contract is ambiguous, its meaning is a question of fact,” which may re-
quire looking to “relevant extrinsic evidence.” Id., § 30:7, at 116, 124.
Similarly here, disputes about the existence of Mr. Pereida's conviction
and its ambiguous meaning involve at least some questions of fact requir-
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The fnal case is no more helpful to Mr. Pereida. Johnson
i
nvolved a criminal prosecution under the Armed Career
Criminal Act (ACCA) in which the government bore the bur-
den 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 gov-
ernment had to show that all of the statute's offenses met
the federal defnition 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 stat-
ute an alien committed, he might succeed by showing that
none of the statute's offenses qualifes as a crime of moral
turpitude. It's simply that this avenue wasn't open to
Mr. Pereida. No one before us questions that Nebraska's
statute contains some crimes of moral turpitude under fed-
eral law. Given this, it necessarily fell to Mr. Pereida to
show that his actual offense was not among these disqualify-
ing offenses. And just as evidentiary gaps work against the
government in criminal cases, they work against the alien
seeking relief from a lawful removal order. When it comes
to civil immigration proceedings, Congress can, and has, allo-
cated the burden differently.
7
C
This leaves Mr. Pereida to his fnal redoubt. Maybe the
INA works as we have described. But, Mr. Pereida worries,
acknowledging as much would invite “grave practical diff-
culties.” Brief for Petitioner 43. What if the alien's record
7
The dissent asserts that the ACCA and INA have a “shared text and
purpose.” Post, at 256. In fact, however, the ACCA and INA provision
at issue here bear different instructions. Both may call for the applica-
tion of the categorical approach. But while the ACCA's categorical ap-
proach demands certainty from the government, the INA's demands it
from the alien. See post, at 247–248.

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of conviction is unavailable or incomplete through no fault of
h
is own? To deny aliens relief only because of poor state
court record-keeping practices would, he submits, make for
ineffcient and unfair public policy. The dissent expands on
these same policy arguments at length. See post, at 256–259.
Notably, though, neither Mr. Pereida nor the dissent sug-
gests that record-keepi ng problems attend th is 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 pre-
serve relevant state court records about his crime. Repre-
sented by counsel in both proceedings, he had professional
help with these tasks too. We know that relevant records
were created, as well, because the government submitted
documents outlining the charges brought against him. De-
spite all this, Mr. Pereida simply declined to insist on clarity
in his state court records or supply further evidence.
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 effciency would be better
served if the government bore the risk of loss associated
with record-keeping diffculties. Meanwhile, the govern-
ment contends that it is important for the burden of proof to
rest with the alien so those seeking discretionary relief can-
not 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 what-
ever outcome seems to us most congenial, effcient, or fair.
Our license to interpret statutes does not include the power
to engage in such freewheeling judicial policymaking. Con-
gress was entitled to conclude that uncertainty about an

242 PEREID
A v. WILKINSON
Opinion of the Court
alien's prior conviction should not redound to his beneft.
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 con-
cern for the defendant's Sixth Amendment right to a trial by
jury. If a judge, rather than a jury, may take evidence and
make fndings of fact, the thinking goes, the proceeding
should be as confned as possible. Id., at 25–26; see also Ap-
prendi, 530 U. S., at 487–490 (citing Almendarez-Torres v.
United States, 523 U. S. 224 (1998)). But Sixth Amendment
concerns are not present in the immigration context. And
in the INA, Congress has expressly authorized parties to
introduce a much broader array of proof when it comes to
prior convictions—indicating, for example, that a variety of
records and attestations “shall” be taken as proof of a prior
conviction. 8 U. S. C. § 1229a(c)(3)(B). Nor is it even clear
whether these many listed forms of proof are meant to be
the only permissible ways of proving a conviction, or
whether they are simply assured of special treatment when
produced. Cf. n. 5, supra. Mr. Pereida acknowledges none
of this, again perhaps understandably if further evidence
could not have helped his cause. Still, it is notable that Con-
gress took signifcant steps in the INA to ameliorate some
of the record-keeping problems Mr. Pereida discusses by
allowing aliens considerably more latitude in carrying their
burden of proof than he seems to suppose.
*
Under the INA, certain nonpermanent aliens seeking to
cancel a lawful removal order must prove that they have not
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Breyer, J., dissenting
been convicted of a disqualifying crime. The Eighth Circuit
correc
tly held that Mr. Pereida failed to carry this burden.
Its judgment is
Affrmed.
Justice Barrett took no part in the consideration or
decision of this case.
Justice Breyer, with whom Justice Sotomayor and
Justice Kagan join, dissenting.
This case, in my view, has little or nothing to do with bur-
dens 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 con-
victed of committing. That approach sometimes allows a
judge to look at, and to look only at, certain specifed docu-
ments. Unless those documents show that the crime of con-
viction necessarily falls within a certain category (here a
“crime involving moral turpitude”), the judge must fnd that
the conviction was not for such a crime. The relevant docu-
ments in this case do not show that the previous conviction
at issue necessarily was for a crime involving moral turpi-
tude. Hence, applying the categorical approach, it was not.
That should be the end of the case.
I
Mr. Pereida 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 clean-
ing. One child is a U. S. citizen. In 2009 the Department
of Homeland Security issued a notice to appear that charged
Mr. Pereida with removability because he was never lawfully
admitted to the United States. Mr. Pereida conceded that
he is removable. But he asked the Attorney General to can-
cel his removal. The Attorney General has discretion to
cancel an order of removal if removal would result in ex-
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244 PEREID
A v. WILKINSON
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treme hardship to the noncitizen's U. S. citizen (or lawful-
p
ermanent-resident) spouse, parent, or child. 8 U. S. C.
§ 1229b(b)(1)(D). A noncitizen is ineligible for this discre-
tionary relief, however, if, among other things, he has
“been convicted of ” a “crime involving moral turpitude.”
§§ 1229b(b)(1)(C), 1182(a)(2)(A)(i)(I).
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 viola-
tion of Neb. Rev. Stat. § 28–608. See § 28–608 (2008) (since
amended and moved to § 28–638 (2020)); § 28–201(1)(b). The
question here is whether this conviction was for a “crime
involving moral turpitude.”
II
A
I believe we must answer this question by applying what
we have called the “categorical approach.” The Immigra-
tion and Nationality Act (INA) makes a noncitizen ineligible
for cancellation of removal if that noncitizen has been “con-
victed” of certain “offense[s],” 8 U. S. C. § 1229b(b)(1)(C), in-
cluding “crime[s] involving moral turpitude,” § 1182(a)(2)(A)
(i)(I). Similarly, the Armed Career Criminal Act (ACCA)
increases the sentence of a defendant convicted of possessing
a frearm as a felon if that defendant has three or more previ-
ous “convictions” for a “violent felony” or “serious drug of-
fense.” 18 U. S. C. § 924(e)(1). In ordinary speech, “crime,”
“offense,” and “felony” are ambiguous: They might refer to
actions that a defendant took on a particular occasion, or
they might refer to the general conduct that a criminal stat-
ute forbids. So the question arises, shall a judge look to
how the noncitizen or defendant behaved on a particular oc-
casion (for example, to see whether he behaved violently)?
Or shall a judge look to the statute that the defendant was
convicted of violating (to see whether the behavior that it
forbids is categorically violent)?
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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 of-
fense a person was “convicted” of, not what acts he “com-
mitted.” 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 defnitions 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, 389
(2017) (applying the categorical approach under the INA);
Mellouli v. Lynch, 575 U. S. 798, 804–806 (2015) (same); Mon-
crieffe, 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, 504–505 (2016) (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 defnition of the offense of conviction and de-
cide whether anyone convicted under that offense is nec-
essarily guilty of the type of crime that triggers federal
penalties, e. g., an enhanced sentence or ineligibility for can-
cellation of removal. See Mellouli, 575 U. S., at 805; Taylor,
495 U. S., at 600.
Consider a hypothetical example of this approach. Sup-
pose a noncitizen's previous conviction was for violating
State Statute § 123. Suppose further that the Government
argues the noncitizen is ineligible for cancellation of removal
because he was “convicted of an offense under” § 1227(a)(2),
namely, an “aggravated felony.” 8 U. S. C. §§ 1229b(b)(1)(C),
1227(a)(2)(A)(iii). An immigration judge, looking at the con-
viction, will simply read § 123 and decide whether anyone
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246 PEREID
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convicted under § 123 is necessarily guilty of an aggravated
felony
, as that term is defned in the INA. See § 1101(a)(43).
That is, the judge will decide whether the conduct that § 123
prohibits is in general an aggravated felony. The judge will
not look to see whether the defendant's actual conduct on
the relevant occasion was or was not an aggravated felony.
Diffcult questions can arise when judges apply the cate-
gorical 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. § 1101(a)(43)(G). We can assume that the term
“burglary” here, as in ACCA, refers to a specifc crime, i. e.,
generic burglary. See Taylor, 495 U. S., at 599; cf. Duenas-
Alvarez, 549 U. S., at 189 (accepting that the INA's reference
to “theft” in § 1101(a)(43)(G) is to generic theft). Generic
burglary is “unlawful or unprivileged entry into, or remain-
ing in, a building or structure, with intent to commit a
crime.” Taylor, 495 U. S., at 599. Now suppose that § 123
defnes “burglary” in a different way (say, by including law-
ful entry with intent to steal). The sentencing judge then
must compare the elements of the state statute and the ele-
ments of generic burglary. If the minimum conduct crimi-
nalized by the state statute is encompassed by generic bur-
glary, then the conviction is for generic burglary; if not, then
the conviction is not for that aggravated felony. See Mon-
crieffe, 569 U. S., at 190–191. In our § 123 example, the
judge would therefore conclude that the conviction is not for
an aggravated felony.
And what is a judge to do if a state statute is “divisible”
into several different offenses, some of which are aggravated
felonies and some of which are not? Suppose, for example,
that § 123 has three subsections referring to (a) burglary of
a dwelling, (b) burglary of a boat, and (c) burglary of a rail-
road car. Since generic burglary is of a dwelling or struc-
ture, only subsection (a) qualifes as an aggravated felony.
How is the judge to know which subsection the defend-
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ant was convicted of violating? Simple, we have replied.
U
nder the “modifed categorical approach,” the judge can
look to a limited set of court records to see if they say which
subsection the defendant was convicted of violating. The
judge can look at the charging papers and the jury instruc-
tions (if there was a jury), see Taylor, 495 U. S., at 602, and
the plea agreement, plea colloquy, or “some comparable judi-
cial record” of the plea (if there was a plea), Shepard, 544
U. S., at 26; see also Nijhawan v. Holder, 557 U. S. 29, 35
(2009) (quoting Shepard, 544 U. S., at 26). If these docu-
ments reveal that the previous conviction was for § 123(a)
(dwelling), then, and only then, can the judge conclude that
the conviction is for an aggravated felony. As we explained
in Taylor, the modifed categorical approach “allow[s]” “the
Government . . . to use [a] conviction” under an overbroad
statute to trigger federal penalties (there, ACCA's sentenc-
ing enhancement) if the statute contains multiple offenses
and the permissible documents show that “the jury necessar-
ily had to fnd” (or the defendant necessarily admitted to) a
violent felony. 495 U. S., at 602.
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 250–
251, that is the question we face here, and our cases provide
the answer. The judge cannot look at evidence beyond the
specifed court records. See, e. g., Mathis, 579 U. S., at 519.
Instead, in such a case, the judge is to determine what the
defendant necessarily admitted (or what a jury necessarily
found) in order for a court to have entered a conviction under
§ 123, since that is the conviction refected in the permissi-
ble documents.
The purpose of the modifed categorical approach, like the
categorical approach it helps implement, is to compare what
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248 PEREID
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generic federal offense. Id., at 505. 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 sentenc-
ing 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 “steno-
graphic notes” of a jury charge would preclude the applica-
tion of ACCA. 544 U. S., at 22. In Mathis, the Court ex-
plained 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 defend-
ant was convicted of a generic offense.” 579 U. S., at 519.
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” pro-
hibited 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 applica-
tion of the modifed 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 neces-
sarily for an aggravated felony. Applying the categorical
approach, the judge must fnd the conviction is not for an
aggravated felony at all.
B
Why would Congress have chosen such a seemingly com-
plicated 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
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the Mojave Desert, it seems unlikely that the conviction was
based
on burglary of a boat. Yet, in the absence of an indi-
cation 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 practi-
cality. Immigration judges and sentencing judges have lim-
ited time and limited access to information about prior con-
victions. 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 refect 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. Sup-
pose that the defendant in the Mojave Desert pleaded guilty
to a violation of § 123 and there is no indication in the rele-
vant record documents which subsection was the basis for
the conviction. To fnd 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 defend-
ant 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
judge now might have to conduct the very fact-based pro-
ceeding that the earlier guilty plea was designed to avoid.
See id., at 21–23.
I do not know how often this kind of counterintuitive ex-
ample 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 Attor-
ney 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.

250 PEREID
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And in the ACCA context, a sentencing judge, even where
A
CCA is inapplicable, has some discretion in determining the
length of a sentence. If he fnds 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 benefts of
the categorical approach, 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
specifed criteria.” Ante, at 233, n. 2. But it has not done so
in the INA provision here. See ante, at 233. 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.
III
Now, let us apply the categorical approach to the con-
viction 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
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crimes involving moral turpitude. See ante, at 235; 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 Neb.
Rev. Stat. § 28–201 (the attempt provision) and describing
the charge as “[a]ttempt of a class 3A or class 4 felo[ny].”
App. to Brief for Petitioner 3a. They do not narrow down
the possible offenses because all the criminal impersonation
offenses can be a Class III or Class IV felony. See Neb.
Rev. Stat. §§ 28–608(2)(a), (b). We cannot look to jury in-
structions because there was no jury. Nor is there any plea
agreement, plea colloquy, or “comparable judicial record”
of the plea that might help determine what Mr. Pereida
admitted.
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 can-
not characterize the conviction as a conviction for a crime
involving moral turpitude. That resolves this case.
IV
How does the majority argue to the contrary? The major-
ity 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 ap-
proach's “hypothetical question” (could someone complete
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the offense of conviction without committing a crime involv-
i
ng moral turpitude). Ante, at 233–234, 239. 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 specifed
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 modifed 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 min-
imum conduct necessary to complete an offense under Neb.
Rev. Stat. § 28–608. Thus, the issue is whether someone
could complete that offense without committing a crime in-
volving moral turpitude.
This question is the central question the categorical ap-
proach 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
to a question that a judge must answer based on specifed
legal documents before him as a “question of law.” To the
contrary, construction of written instruments such as deeds,
contracts, tariffs, or patent claims “often presents a `question
solely of law.' ” Teva Pharmaceuticals USA, Inc. v. Sandoz,
Inc., 574 U. S. 318, 326 (2015). And legal questions are not
affected by a burden of proof. See, e. g., Microsoft Corp. v.
i4i L. P., 564 U. S. 91, 100, n. 4 (2011).
The majority points out that we have occasionally referred
to the “ `fact of a prior conviction.' ” Ante, at 238. The ma-
jority reads too much into that reference. All that we have
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seriously referred to as a fact is the “mere fact of conviction.”
T
aylor, 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 nec-
essarily 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 ap-
proach, 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 approach, 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 “satisfes the applicable eligibility
requirements,” § 1229a(c)(4)(A), which includes the require-
ment that he not have been convicted of a crime involving
moral turpitude. See ante, at 231. But burdens of proof
have nothing to do with this case. As just discussed, be-
cause the categorical approach conclusively resolves the am-
biguity as to which offense was the basis for the conviction,
there is no role for the burden of proof to play. Indeed, the
Government agreed at argument that the burden of proof
would not apply “if this were just a categorical approach
case.” Tr. of Oral Arg. 53. That this case implicates the
modifed categorical approach rather than the categorical ap-
proach does not make a difference. The modifed categorical
approach, like the categorical approach, provides a conclusive
answer without any resort to burdens of proof. It does so
not by “treating [a] (divisible) statute as if it states a single
offense,” ante, at 236, n. 4, but by permitting courts to look
at only certain conclusive records of a conviction to deter-
mine what that conviction necessarily involved.
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This conclusion is consistent with the text. The statutory
text
itself “singl[es] out this lone requirement for special
treatment,” ante, at 231, 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 §§ 1229a(c)
(3)(B)(iii), (iv), (vi). Such doubt may have arisen, for exam-
ple, if Mr. Pereida had contested that a complaint submitted
by the Government actually resulted in a conviction or con-
tended that the conviction is against a different Clemente
Avelino Pereida. See ante, at 237. There is no such doubt
in this case. No one disputes that Mr. Pereida has a prior
conviction. The parties apparently presented the judge
with all the existing relevant documentary material of that
conviction. This case concerns a different question: Given
the fact of Mr. Pereida's conviction, was it necessarily for a
crime involving moral turpitude? The law instructs the
judge how to determine, looking at only a limited set of ma-
terial, whether the crime of conviction is or is not a crime
involving moral turpitude. Because of the categorical ap-
proach, there is nothing left for a party to prove.
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 233, 237, 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.” § 1229a(c)(3)(B).
They include an “offcial record of judgment and conviction,”
an “offcial record of plea, verdict, and sentence,” a “docket
entry from court records that indicates the existence of the
conviction,” court minutes of a “transcript . . . in which the
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court takes notice of the existence of the conviction,” an off-
cia
l “abstract of a record of conviction” that indicates “the
charge or section of law violated” (among certain other
things), and any other “document or record attesting to the
conviction” prepared or kept by the court or by a “penal
institution.” Ibid. The majority also notes that the INA
authorizes an immigration judge to make “credibility deter-
mination[s]” about a noncitizen's written and oral proof and
determine whether “testimony is credible, is persuasive, and
refers to specifc facts suffcient to demonstrate that the
applicant has satisfed the applicant's burden of proof.”
§§ 1229a(c)(4)(B), (C). As the majority concedes, this evi-
dence is broader than what we have permitted in our modi-
fed categorical approach cases. See ante, at 242.
I agree with the majority that bearing the burden 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 docu-
ments 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 in
the immigration context. Ibid. That was not, however, our
only, or even primary, reason for adopting the limitation.
Rather, we limited the documents that a judge can review
in order “to implement the object of the statute and avoid
evidentiary disputes.” Shepard, 544 U. S., at 23, n. 4. To
be sure, we were there referencing ACCA, not the INA.
But the statutes share the relevant object (tying federal pen-
alties to certain convictions, not certain conduct) signaled by
the same statutory text (“conviction”). See Taylor, 495
U. S., at 600; Mellouli, 575 U. S., at 806. The “central fea-
ture” of this statutory object is “a focus on the elements,
rather than the facts, of a crime.” Descamps, 570 U. S., at

256 PEREID
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Breyer, J., dissenting
263. Allowing review of a broad array of evidence is incom-
patible
with this statutory object, even if the judge looks at
the evidence only to determine the nature of the offense of
which a noncitizen was convicted. See Shepard, 544 U. S.,
at 21–23. I see no reason for the categorical approach to
apply differently under the INA than under ACCA given
their shared text and purpose. The “ `long pedigree' ” of the
categorical approach in our immigration law further counsels
against departing from how we have long understood that
approach to work. Mellouli, 575 U. S., at 805–806. Al-
though this Court frst applied the categorical approach in
the criminal context, see ante, at 233, courts examining the
federal immigration statutes concluded that Congress in-
tended a categorical approach decades before Congress even
enacted ACCA. See Mellouli, 575 U. S., at 805–806.
At a minimum, I would not hold, in this case, that the cate-
gorical approach's limitation on the documents a judge can
consult is inapplicable in immigration proceedings. That ar-
gument was neither raised nor briefed by the parties. The
Government confrmed 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. Without the beneft of
briefng and argument, we cannot fully anticipate the conse-
quences of today's decision.
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 diffculties and potential unfairness that Congress
intended to avoid by adopting a categorical approach.
First, allowing parties to introduce a wide range of docu-
mentary evidence and testimony to establish the crime of
conviction may undermine the “judicial and administrative
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Breyer, J., dissenting
effciency” that the categorical approach is intended to pro-
mote
. Moncrieffe, 569 U. S., at 200. As we have recog-
nized 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
offcers, 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 prosecu-
tor who charged the noncitizen or the court reporter who
transcribed the now-lost plea colloquy. Given the vast num-
ber of different state misdemeanors, plea agreements made
long ago, cursory state records, and state prosecutors or
other offcials who have imperfect memories or who have
long since departed for other places or taken up new occupa-
tions, 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.” Mon-
crieffe, 569 U. S., at 201.
Second, today's decision may make the administration of
immigration law less fair and less predictable. One virtue
of the categorical approach is that it “enables aliens `to antic-
ipate the immigration consequences of guilty pleas in crimi-
nal court,' and to enter ` “safe harbor” guilty pleas [that] do
not expose the [alien defendant] to the risk of immigration
sanctions.' ” Mellouli, 575 U. S., at 806 (alterations in origi-
nal). The majority's approach, on the other hand, may “de-
prive some defendants of the benefts of their negotiated plea
deals.” Descamps, 570 U. S., at 271. A noncitizen may
agree to plead guilty to a specifc offense in a divisible stat-
ute because that offense does not carry adverse immigration
consequences. But in many lower criminal courts, misde-
meanor convictions are not on the record. See Brief for Na-
tional Association of Criminal Defense Lawyers et al. as
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Amici Curiae 7–9 (NACDL Brief ); Brief for United States
i
n Johnson v. United States, O. T. 2008, No. 08–6925, p. 43
(“[P]lea colloquies . . . are not always transcribed or other-
wise available”). In jurisdictions where misdemeanor con-
victions are on the record, such records frequently omit key
information about the plea and may be destroyed after only
a few years. See NACDL Brief 10–16; see also Brief
for United States in Voisine v. United States, O. T. 2014,
No. 14–10154, p. 45 (“[R]ecords from closed misdemeanor
cases are often unavailable or incomplete”). And even
where complete records do exist, noncitizens, who often are
unrepresented, detained, or not fuent English speakers, may
not have the resources to offer more than their own testi-
mony. See Brief for Immigrant Defense Project et al. as
Amici Curiae 11–19. Thus, under the majority's approach,
noncitizens may lose the beneft of their plea agreements un-
less their testimony persuades the immigration judge that
they pleaded guilty to the lesser offense.
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
list multiple offenses as if they list only one, whether inad-
vertently or as a matter of practice. See NACDL Brief 13
(explaining that “[a]cross many states and localities, the rec-
ords of misdemeanor pleas often do not include the statutory
subsection or factual basis underlying the conviction”). It
sometimes can be challenging to determine whether a fact is
an element or a means (and so whether a statute is divisible
or not). If a prosecutor mistakes a divisible statute for an
indivisible one, she may well not identify which particular
offense was the basis for the charge. Some States, including
Nebraska, do not require a pleading to identify the alterna-
tive means of committing a crime—as opposed to the alterna-
tive crimes—on which a conviction is based. See 5 W. La-
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Fave, J. Israel, N. King, & O. Kerr, Criminal Procedure
§
19.3(a), p. 263 (3d ed. 2007); State v. Brouillette, 265 Neb.
214, 221, 655 N. W. 2d 876, 884 (2003) (“[T]his court has made
clear that certain crimes are single crimes that can be
proved under different theories, and that because each alter-
native theory is not a separate crime, the alternative theo-
ries do not require that the crime be charged as separate
alternative counts”). When a divisible statute is wrongly
treated as indivisible, for whatever reason, records will be
“inconclusive” because the defendant was not, as a matter of
fact, convicted of any particular alternative crime. It would
be unfair for mandatory deportation to result from inconclu-
sive records in these cases.
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
beneft.” Ante, at 241–242. But Congress made precisely
the opposite choice by tying ineligibility for relief to a noncit-
izen's “conviction.” That text mandates a categorical ap-
proach in which uncertainty about a conviction redounds to
a noncitizen or defendant's beneft. The approach is under-
inclusive by design, and the majority's “objection to th[e cat-
egorical approach's] underinclusive result is little more than
an attack on the categorical approach itself.” Moncrieffe,
569 U. S., at 205.
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 dis-
cretionary. 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 cate-
gorical approach does not apply.
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***
In
my view, the Court should follow Congress' statute.
Congress has long provided that immigration courts apply-
ing 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 ap-
proach 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.
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