Mar 4, 2021 — Applying the categorical approach, a court considers the offense of conviction necessarily or categorically triggers a conse- 20/eoir42b.pdf.
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1 (Slip Opinion) OCTOBER TERM, 2020 Syllabus 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. 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. 19Œ438. Argued October 14, 2020ŠDecided March 4, 2021 Immigration officials initiated remo val 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 cancella tion 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 nonper -manent residents to prove, among other things, that they have not been convicted of specified criminal offenses. §1229b(b)(1)(C). While his proceedings were pending, Mr. Pereida was convicted of a crime under Nebraska state law. See Neb. Rev. Stat. §28Œ608 (2008). Ana -lyzing whether Mr. Pereida™s conviction constituted a ﬁcrime involving moral turpitudeﬂ that would bar his eligibility for cancellation of re-moval, §§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 involved moral turpitude and oneŠcarrying on a business without a required licenseŠwhich did not. Because Nebraska had charged Mr. Pereida 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 unli -censed business, and thus the convic tion likely constituted a crime in -volving moral turpitude. The Boar d of Immigration Appeals and the Eighth Circuit concluded that the record did not establish which crime Mr. Pereida stood convicted of violating. 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 nonpermane nt residents seeking to cancel
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2 PEREIDA v. WILKINSON Syllabus a lawful removal order bear the burd en 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 whic h are disqualifying, and the record is ambiguous as to which crime fo rmed the basis of his conviction. Pp. 5Œ17.(a) The INA squarely places the burden of proof on the alien to prove eligibility for relief from removal. §1229a(c)(4)(A). Mr. Pereida accepts his burden to prove three of four statutory eligibility requirements but claims a different rule should apply to the final requirement at issue hereŠwhether he was convicted of a disqualifying offense. Mr. Pereida identifies nothing in the st atutory text that singles out that lone requirement for special treatment . The plain reading of the text is confirmed by the context of three nearby provisions. First, the INA specifies particular forms of evidence that ﬁshall constitute proof of a criminal convictionﬂ in ﬁany proceedin g under this chapter,ﬂ regardless of whether the proceedings involve efforts by the government to re -move 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 flip the burden when it comes to applicat ions for relief from removal. Fi-nally, the INA often requires an alien seeking admission to show ﬁclearly and beyond doubtﬂ that he is ﬁentitled to be admitted and is not inadmissible,ﬂ §1229a(c)(2), whic h in turn requires the alien to demonstrate that he has not committed a crime involving moral turpi -tude, §1182(a)(2)(A)(i)(I). Mr. Pereida offers no account why a rational Congress would have placed this bu rden on an alien who is seeking admission, but lift it from an alie n who has entered the country ille -gally and faces a lawful removal order. Pp. 5Œ7. (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 ﬁcategorical approach.ﬂ Applying the categorical approach, a court considers not the facts of an indivi dual™s conduct, but rather whether the offense of conviction necessarily or categorically triggers a conse -quence under federal law. Under Mr. Pereida™s view, because a person could hypothetically violate the Nebraska statute without committing fraudŠi.e., by carrying on a business without a licenseŠthe statute does not qualify as a crime of moral turpitude. But application of thecategorical approach implicates tw o inquiriesŠone factual (what wasMr. Pereida™s crime of conviction?), the other hypothetical (could some -one commit that crime of conviction without fraud?). And the Ne -braska statute is divisible, setting forth multiple crimes, some of which the parties agree are crimes of mora l turpitude. In cases involving
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3 Cite as: 592 U. S. ____ (2021) Syllabus divisible statutes, the Court has told judges to determine which of the offenses an individual committed by employing a ﬁmodifiedﬂ categori -cal approach, ﬁreview[ing] the record materials to discover which of the enumerated alternatives played a part in the defendant™s prior convic -tion.ﬂ Mathis v. United States , 579 U. S. ___, ___. This determination, like many issues surrounding the who, what, when, and where of a prior conviction, involves questions of historical fact. The party who bears the burden of proving these fa cts bears the risks associated with failing to do so. This point is co nfirmed 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. 7Œ 15. (c) It is not this Court™s plac e to choose among competing policy ar -guments. 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., §1229a(c)(3)(B). Pp. 15Œ17. 916 F. 3d 1128, affirmed. GORSUCH, J., delivered the opinion of the Court, in which R OBERTS, C. J., and T HOMAS, A LITO, and KAVANAUGH, JJ., joined. B REYER, J., filed a dissenting opinion, in which S OTOMAYOR and K AGAN, JJ., joined. BAR-RETT, J., took no part in the consid eration or decision of the case.
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_________________ _________________ 1 Cite as: 592 U. S. ____ (2021) Opinion of the Court 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, Wash -ington, D. C. 20543, of any typographical or other form al errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES No. 19Œ438 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 se -cured a lawful order directing his removal. The only re -maining 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 ﬁcrime involving moral turpitude.ﬂ 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 ﬁmoral turpitudeﬂ 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 convicted of a disqualifying criminal offense.
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2 PEREIDA v. WILKINSON Opinion of the Court I The INA governs how persons are admitted to, and re -moved 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 countryunlawfully or committing a serious crime while here. See 8 U. S. C. §§1229a, 1182(a), 1227(a).Even then, however, an ave nue for relief remains. A per -son faced with a lawful removal order may still ask the At – torney General to ﬁcancelﬂ 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 least 10 years; (2) he has been a person of good moral char -acter; (3) he has not been convicted of certain criminal of -fenses; and (4) his removal would impose an ﬁexceptional and extremely unusualﬂ 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 or – ders 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 coun -try unlawfully and had never beco me 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
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3 Cite as: 592 U. S. ____ (2021) Opinion of the Court 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 fur- ther 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: ﬁ(a) Assumes a false identity and does an act in his or her assumed character with intent to gain a pecuni -ary benefit . . . or to deceive or harm another;ﬁ(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 benefit . . . and to deceive or harm another; ﬁ(c) Carries on any profession, business, or any other occupation without a license, certificate, or other au – thorization required by law; orﬁ(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.ﬂ Neb. Rev. Stat. §28Œ 608 (2008) (since amended and moved to Neb. Rev. Stat. §28Œ638). 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
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5 Cite as: 592 U. S. ____ (2021) Opinion of the Court Nebraska had charged Mr. Pereida with using a fraudulent social security card to obtain employment, and while that evidence would ﬁseem to support a finding that the crime underlying [Mr. Pereida™s] attempt offense involved fraud or deceit,ﬂ the BIA and Court of Appeals observed that noth – ing in the record definitively indicated which statutory sub -section 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 re lief, so it was up to him to show that his crime of conviction did not involve moral tur – pitude. 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 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 lan -guage it adopted. And there, a shortcoming quickly emerges. The INA states that ﬁ[a]n alien applying for relief or protection from removal has the burden of proof to estab -lishﬂ that he ﬁsatisfies the applicable eligibility require – mentsﬂ and that he ﬁmerits a favorable exercise of discre-tion.ﬂ 8 U. S. C. §1229a(c)(4)(A). To carry that burden, a nonpermanent resident alien like Mr. Pereida must prove four things, including that he ﬁhas not been convictedﬂ of certain disqualifying offenses, like crimes involving moral turpitude. §1229b(b)(1)(C). Thus any lingering uncertainty about whether Mr. Pereida stands convicted of a crime of
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6 PEREIDA v. WILKINSON Opinion of the Court moral turpitude would appear enough to defeat his applica – tion for relief, exactly 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 statutory eligibility requireme nts (his longstanding pres-ence 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 re -quirement at issue hereŠwhether he was convicted of a dis -qualifying offenseŠthat Mr. Pereida insists a different rule should apply. Yet, he identifies nothing in the statutory text singling out this lone requirement for special treat-ment. 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 seem to defeat an assertion of ﬁgood moral charac -ter.ﬂ Cf. 8 U. S. C. §1101(f )(3). And if that™s true, it™s hard to see how the same ambiguity could help an alien when it comes to the closely related eligibility requirement at issue before us. What the statute™s text indicates, its context confirms. Consider three nearby provisions. First, the INA specifies particular forms of evidence that ﬁshall constitute proof of a criminal conviction,ﬂ includin g certain official records ofconviction, docket entries, and attestations. §1229a(c)(3)(B). These rules apply to ﬁany proceeding un -der this chapterﬂ regardless whether the proceedings hap – pen to involve efforts by the government to remove an alienor efforts by an alien to obtain relief. Ibid. In this way, the INA anticipates both the need for proof about prior convic -tions and the fact an alien sometimes bears the burden of supplying it.Next, when it comes to ﬁremoval proceedings,ﬂ the INA assigns the government the ﬁburdenﬂ of showing that the alien has committed a crime of moral turpitude in certain
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7 Cite as: 592 U. S. ____ (2021) Opinion of the Court circumstances. See §§1229a(c)(3), 1227(a)(2)(A)(i). But the burden flips for ﬁ[a]pplications for relief from removal,ﬂ likethe 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, re – flects its choice that these different processes warrant dif – ferent treatment. Finally, the INA often requires an alien applying for ad-mission to show ﬁclearly and beyond doubtﬂ that he is ﬁen – titled to be admitted and is not inadmissible.ﬂ §1229a(c)(2)(A). As part of this showing, an alien must demonstrate that he has not committed a crime involvingmoral 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. Pereida has offered no account why a rational Congress might wish to place this burden on an alien seeking admis – sion to this country, yet lift it from an alien who has entered the country illegally and is petitioning for relief from a law – ful removal order. 1 B Confronted now with a growing list of unhelpful textualclues, 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 ﬁcategoricalapproach.ﬂThe 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 ŠŠŠŠŠŠ 1The dissent does not seriously dispute any of this, but brushes it aside as having ﬁlittle or n[o]ﬂ importance only because of th e ﬁcategorical ap-proachﬂ discussed in the next section. Post, at 1 (opinion of B REYER, J.).
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8 PEREIDA v. WILKINSON Opinion of the Court facts of an individual™s crime as he actually committed it.Instead, a court asks only whether an individual™s crime of conviction necessarilyŠor categoricallyŠtriggers a partic -ular 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 federal standard like ﬁmoral turpitude,ﬂ but only whether the individual ﬁhas. . . been convicted of an offenseﬂ 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. ___, ___Œ___ (2019) (slip op., at 9Œ 11).2 In Mr. Pereida™s view, the categorical approach makes all the difference. It does so because Nebraska™s statute crim – inalizes at least some conductŠlike carrying on a business without a licenseŠthat 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 acrime involving moral turpitude. In this way, Mr. Pereida submits, he can carry any burden of proof the INA assignshim. 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 ŠŠŠŠŠŠ 2Nothing 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, Congre ss could have (and sometimes has) used statutory language requiring courts to ask whether the defendant™s actual conduct meets certain specified criteria. See, e.g. , Nijhawan v. Holder, 557 U. S. 29, 41 (2009).
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