Pereida v. Wilkinson

(Slip Opinion)              OCTOBER TERM, 2020                                       1

                                       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., 

.


SUPREME COURT OF THE UNITED STATES

                                       Syllabus

      PEREIDA v. WILKINSON, ACTING ATTORNEY
                     GENERAL

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
                 THE EIGHTH CIRCUIT

     No. 19–438.      Argued October 14, 2020—Decided March 4, 2021
Immigration officials initiated removal proceedings against Clemente
  Avelino Pereida for entering and remaining in the country unlawfully,
  a charge Mr. Pereida did not contest. Mr. Pereida sought instead to
  establish his eligibility for cancellation of removal, a discretionary
  form of relief under the Immigration and Nationality Act (INA). 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. §28–608 (2008). Ana-
  lyzing whether Mr. Pereida’s conviction constituted a “crime involving
  moral turpitude” 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 one—carrying on a business
  without a required license—which 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 conviction likely constituted a crime in-
  volving moral turpitude. The Board 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 nonpermanent residents seeking to cancel
2                        PEREIDA v. WILKINSON

                                   Syllabus

    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. 5–17.
       (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
    here—whether he was convicted of a disqualifying offense. Mr.
    Pereida identifies nothing in the statutory 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 “shall constitute proof of a
    criminal conviction” in “any proceeding under this chapter,” 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 applications for relief from removal. Fi-
    nally, the INA often requires an alien seeking admission to show
    “clearly and beyond doubt” that he is “entitled to be admitted and is
    not inadmissible,” §1229a(c)(2), which 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 burden on an alien who is seeking
    admission, but lift it from an alien who has entered the country ille-
    gally and faces a lawful removal order. Pp. 5–7.
       (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 conse-
    quence 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 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 moral turpitude. In cases involving
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                                Syllabus

  divisible statutes, the Court has told judges to determine which of the
  offenses an individual committed by employing a “modified” categori-
  cal approach, “review[ing] the record materials to discover which of the
  enumerated alternatives played a part in the defendant’s prior convic-
  tion.” Mathis v. United States, 

, ___. 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 facts bears the risks associated with
  failing to do so. This point is confirmed by the INA’s terms and the
  logic undergirding them. A different conclusion would disregard many
  precedents. See, e.g., Taylor v. United States, 

. Just
  as evidentiary gaps work against the government in criminal cases
  where it bears the burden, see, e.g., Johnson v. United States, 

, they work against the alien seeking relief from a lawful removal
  order. Congress can, and has, allocated the burden differently. Pp. 7–
  15.
     (c) It is not this Court’s place 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. 15–17.

, affirmed.

  GORSUCH, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and THOMAS, ALITO, and KAVANAUGH, JJ., joined. BREYER, J., filed
a dissenting opinion, in which SOTOMAYOR and KAGAN, JJ., joined. BAR-
RETT, J., took no part in the consideration or decision of the case.
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                              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 formal errors, in order that
     corrections may be made before the preliminary print goes to press.


SUPREME COURT OF THE UNITED STATES
                                    _________________

                                     No. 19–438
                                    _________________


   CLEMENTE AVELINO PEREIDA, PETITIONER v.
    ROBERT M. WILKINSON, ACTING ATTORNEY
                  GENERAL
 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
           APPEALS FOR THE EIGHTH CIRCUIT
                                  [March 4, 2021]

  JUSTICE GORSUCH delivered the opinion of the Court.
  Everyone agrees that Clemente Avelino Pereida entered
this country unlawfully, and that the government has 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
“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
convicted of a disqualifying criminal offense.
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 country
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 per-
son faced with a lawful removal order may still ask the At-
torney 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
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 “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 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 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
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                      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:
        “(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;
        “(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;
        “(c) Carries on any profession, business, or any other
    occupation without a license, certificate, 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 records . . . personal identifying information; and (ii)
    Accesses or attempts to access the financial resources
    of another through the use of . . . personal identifying
    information for the purpose of obtaining credit, money
    . . . or any other thing of value.” Neb. Rev. Stat. §28–
    608 (2008) (since amended and moved 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
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                      Opinion of the Court

of certain crimes, including ones “involving moral turpi-
tude.” 

(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 involv-
ing “fraud [as] an ingredient” qualifies as a crime involving
“moral turpitude.” Jordan v. De George, 

(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
reason to think it was the offense Mr. Pereida had commit-
ted. The government presented a copy of the criminal com-
plaint against Mr. Pereida showing that Nebraska had
charged him with using a fraudulent social security card to
obtain employment. Meanwhile, Mr. Pereida declined to of-
fer any competing evidence of his own. In light of this state
of proof, the immigration judge found that Mr. Pereida’s
conviction had nothing to do with carrying on an unlicensed
business in violation of subsection (c) and everything to do
with the fraudulent (and thus disqualifying) conduct made
criminal by subsections (a), (b), or (d).
   Mr. Pereida’s efforts to undo this ruling proved unsuc-
cessful. Both the Board of Immigration Appeals (BIA) and
the Eighth Circuit agreed with the immigration judge that
Nebraska’s statute contains different subsections describ-
ing different crimes. Pereida v. Barr, 

 (2019). They agreed, too, that subsections (a), (b), and
(d) set forth crimes involving moral turpitude, while sub-
section (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
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                     Opinion of the Court

Nebraska had charged Mr. Pereida with using a fraudulent
social security card to obtain employment, and while that
evidence would “seem to support a finding that the crime
underlying [Mr. Pereida’s] attempt offense involved fraud
or deceit,” 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 relief, 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. 

(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 “[a]n alien applying for relief
or protection from removal has the burden of proof to estab-
lish” that he “satisfies the applicable eligibility require-
ments” and that he “merits a favorable exercise of discre-
tion.” 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 “has not been convicted” 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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                      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 requirements (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 here—whether he was convicted of a dis-
qualifying offense—that Mr. Pereida insists a different rule
should apply. Yet, he identifies nothing in the statutory
text singling out this lone requirement for special 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 “good moral charac-
ter.” Cf. 

(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 “shall constitute proof of
a criminal conviction,” including certain official records of
conviction,       docket     entries,     and     attestations.
§1229a(c)(3)(B). These rules apply to “any proceeding un-
der this chapter” regardless whether the proceedings hap-
pen to involve 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 convic-
tions and the fact an alien sometimes bears the burden of
supplying 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
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                           Opinion of the Court

circumstances. See §§1229a(c)(3), 1227(a)(2)(A)(i). But the
burden flips 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, 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 “clearly and beyond doubt” that he is “en-
titled to be admitted and is not inadmissible.”
§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.
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 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 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
——————
  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 “categorical ap-
proach” discussed in the next section. Post, at 1 (opinion of BREYER, J.).
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 necessarily—or categorically—triggers 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 “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, 

(1990); Leocal v. Ashcroft, 

 (2004); United
States v. Davis, 

, ___–___ (2019) (slip op., at 9–
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 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
——————
  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 specified criteria. See, e.g., Nijhawan v.
Holder, 

 (2009).
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                          Opinion of the Court

his actual offense of conviction was in the first 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 cat-
egorical approach thus implicates two inquiries—one fac-
tual (what was Mr. Pereida’s crime of conviction?), the other
hypothetical (could someone commit that crime of convic-
tion 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-
victed of crime x. Not infrequently, however, a single crim-
inal statute will list multiple, stand-alone offenses, some of
which trigger consequences under federal law, and others
of which do not. To determine exactly which offense in a
divisible statute an individual committed, this Court has
told judges to employ a “modified” categorical approach, “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, 

, ___, ___
(2016) (slip op., at 12, 16). In aid of the inquiry, we have
said, judges may consult “a limited class of documents (for
example, the indictment, jury instructions, or plea agree-
ment and colloquy) to determine what crime, with what el-
ements, a defendant was convicted of.” Id., at ___ (slip op.,
at 4).
   These nuances expose the difficulty with Mr. Pereida’s
——————
  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 10. Elsewhere, the dissent appears to admit that establishing
the “basic fact” of an individual’s crime of conviction is a necessary pre-
requisite to application of the categorical approach. Post, at 11. The
second view comes closer to the mark.
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                      Opinion of the Court

argument. Both he and the government accept that Ne-
braska’s attempted criminal impersonation statute is di-
visible because it states no fewer than four separate of-
fenses in subsections (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 prov-
ing as a factual matter that his conviction was for misusing
a business license under subsection (c). To be sure, in this
Court Mr. Pereida now seeks to suggest that it is also pos-
sible for a hypothetical defendant to violate subsection (a)
without engaging in conduct that involves moral turpitude
under federal law. But even assuming he is right about
this, it still left him obliged to show in the proceedings be-
low that he was convicted under subsection (a) or (c) rather
than under (b) or (d).
   Mr. Pereida failed to carry that burden. Before the im-
migration judge, he refused to produce any evidence about
his crime of conviction even after the government intro-
duced evidence suggesting that he was convicted under a
statute setting forth some crimes involving fraud. Nor has
Mr. Pereida sought a remand for another chance to resolve
the ambiguity by introducing evidence about his crime of
conviction; at oral argument, he even disclaimed interest in
the possibility. See Tr. of Oral Arg. 23–25. These choices
may be the product of sound strategy, especially if further
evidence would serve only to show that Mr. Pereida’s crime
of conviction did involve fraud. But whatever degree of am-
biguity remains about the nature of Mr. Pereida’s convic-
tion, and whatever the reason for it, one thing remains
stubbornly evident: He has not carried his burden of show-
ing 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
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                           Opinion of the Court

consequence, courts applying the categorical approach of-
ten 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
   The INA’s plain terms confirm the point. Recall that the
INA places the “burden of proof ” on an alien like Mr.
Pereida to show four things; that one of these is the absence
of a disqualifying conviction; and that the law specifies cer-
tain forms of evidence “shall” constitute “proof ” of a crimi-
nal conviction. See Part II–A, supra. In each of these ways,
the statutory scheme anticipates the need for evidentiary
proof about the alien’s crime of conviction and imposes on
the alien the duty to present it.5
——————
   4 The dissent makes the same mistake. At first, it acknowledges that

courts must look to factual evidence to determine which of several of-
fenses 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 5, 9. But the dissent then does an about-
face—treating Nebraska’s (divisible) statute as if it states a single of-
fense. Post, at 10. The dissent had it right the first time. Both sides
agree that Nebraska’s statute is divisible and states (at least) four inde-
pendent 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 benefit from that uncertainty. But that proposition is fore-
closed by the INA’s burden of proof.
   5 There are other statutory signals that point to the same conclusion.

The INA authorizes an immigration judge to make “credibility determi-
nation[s]” based on an alien’s proof, §1229a(c)(4)(C); it says the immigra-
tion judge must determine whether “testimony is credible, is persuasive,
and refers to specific facts sufficient to [discharge] the applicant’s burden
12                      PEREIDA v. WILKINSON

                           Opinion of the Court

   The INA adopts this approach for understandable rea-
sons too. Not only is it impossible to discern an individual’s
offense of conviction without consulting at least some docu-
mentary or testimonial evidence. It’s easy to imagine sig-
nificant factual disputes that make these statutory instruc-
tions about the presentation of evidence and the burden of
proof critically important. Suppose, for example, that the
parties in this case disputed whether the criminal com-
plaint the government introduced involved a different
Clemente Avelino Pereida. Alternatively, what if Ne-
braska’s complaint charged Mr. Pereida with a violation of
subsection (c) but the plea colloquy mentioned only subsec-
tion (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 statu-
tory 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 com-
mitting is to ask a question of fact. See, e.g., Taylor, 

 (courts look “to the fact that the defendant had
been convicted of crimes falling within certain categories”).

——————
of proof,” §1229a(c)(4)(B); and the law requires the alien to comply with
regulations requiring him to “submit information or documentation” sup-
porting 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 Office 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 special carveout ex-
ists when it comes to evidence concerning prior convictions.
                      Cite as: 

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                           Opinion of the Court

We have described the modified categorical approach as re-
quiring 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 ___ (slip
op., at 16). We have acknowledged that this process calls
on courts to consider “extra-statutory materials” to “dis-
cover” the defendant’s crime of conviction. Descamps v.
United States, 

 (2013). We have observed
that these “materials will not in every case speak plainly,”
and that any lingering ambiguity about them can mean the
government will fail to carry its burden of proof in a crimi-
nal case. Mathis, 579 U. S., at ___ (slip op., at 18) (citing
Shepard v. United States, 

 (2005)). And we
have remarked that “the fact of a prior conviction” supplies
an unusual and “arguable” exception to the Sixth Amend-
ment 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, 

(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 first place—pose questions of fact. Nor
have we questioned that, like any other fact, the party who
bears the burden of proving these facts bears the risks as-
sociated with failing to do so.6
——————
   6 Practice in the criminal and INA contexts comports with practice in

other fields 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
example, 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 deter-
mined by a valid and final judgment.” §27, and Comment f (1982). And
“[i]f it cannot be determined from the pleadings and other materials of
record in the prior action what issues, if any, were litigated and deter-
mined by the verdict and judgment, extrinsic evidence is admissible to
14                     PEREIDA v. WILKINSON

                          Opinion of the Court

   The authorities Mr. Pereida invokes do not teach differ-
ently. He directs our attention especially to Moncrieffe v.
Holder, 

 (2013), Carachuri-Rosendo v. Holder,

 (2010), and Johnson v. United States, 

 (2010). But the first two cases addressed only the
question whether the minimum conduct needed to commit
an alien’s known offense of conviction categorically trig-
gered adverse federal consequences. Neither addressed the
threshold factual question at issue here—which crime
formed the basis of the alien’s prior conviction.
   The final case is no more helpful to Mr. Pereida. Johnson
involved a criminal prosecution under the Armed Career
Criminal Act (ACCA) in which the government bore the
burden of proof. There, “nothing in the record” indicated
which of several crimes in a divisible statute the defendant
had been convicted of committing. Id., at 137. Accordingly,
if it wished to win certain sentencing enhancements, the
government had to show that all of the statute’s offenses
met the federal definition of a “ ‘violent felony.’ ” Ibid. Here,
by contrast, Mr. Pereida bears the burden of proof and the
same logic applies to him. We do not doubt that, when the
record is silent on which of several crimes in a divisible stat-
ute an alien committed, he might succeed by showing that

——————
aid in such determination. Extrinsic evidence may also be admitted to
show that the record 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 10–
11. 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, Wil-
liston 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 require looking to “relevant extrinsic evidence.” Id., §30:7, at 116,
124. Similarly here, disputes about the existence of Mr. Pereida’s con-
viction and its ambiguous meaning involve at least some questions of fact
requiring resort to proof.
                     Cite as: 

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                          Opinion of the Court

none of the statute’s offenses qualifies 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 stat-
ute contains some crimes of moral turpitude under federal
law. Given this, it necessarily fell to Mr. Pereida to show
that his actual offense was not among these disqualifying
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, al-
located the burden differently.7
                               C
   This leaves Mr. Pereida to his final redoubt. Maybe the
INA works as we have described. But, Mr. Pereida worries,
acknowledging as much would invite “grave practical diffi-
culties.” Brief for Petitioner 43. What if the alien’s record
of conviction is unavailable or incomplete through no fault
of his own? To deny aliens relief only because of poor state
court record-keeping practices would, he submits, make for
inefficient and unfair public policy. The dissent expands on
these same policy arguments at length. See post, at 14–16.
   Notably, though, neither Mr. Pereida nor the dissent sug-
gests that record-keeping problems attend this case. Mr.
Pereida’s immigration proceedings progressed in tandem
with his criminal case, so it is hard to imagine how he could
have been on better notice about the need to obtain and 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

——————
   7 The dissent asserts that the ACCA and INA have a “shared text and

purpose.” Post, at 14. In fact, however, the ACCA and INA provision at
issue here bear different instructions. Both may call for the application
of the categorical approach. But while the ACCA’s categorical approach
demands certainty from the government, the INA’s demands it from the
alien. See post, at 6.
16                  PEREIDA v. WILKINSON

                      Opinion of the Court

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 clar-
ity 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 efficiency would be better
served if the government bore the risk of loss associated
with record-keeping difficulties. Meanwhile, the govern-
ment contends that it is important for the burden of proof
to rest with the alien so those seeking discretionary relief
cannot gain a tactical advantage by withholding or conceal-
ing evidence they possess about their own convictions. It is
hardly this Court’s place to pick and choose among compet-
ing policy arguments like these along the way to selecting
whatever outcome seems to us most congenial, efficient, or
fair. Our license to interpret statutes does not include the
power to engage in such freewheeling judicial policymak-
ing. Congress was entitled to conclude that uncertainty
about an alien’s prior conviction should not redound to his
benefit. Only that policy choice, embodied in the terms of
the law Congress adopted, commands this Court’s respect.
   It seems, too, that Mr. Pereida may have overlooked some
of the tools Congress afforded aliens faced with record-keep-
ing 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 rec-
ords. Shepard, 544 U. S., at 20–23. In part, the Court has
circumscribed the proof a judge may consult out of concern
for the defendant’s Sixth Amendment right to a trial by
jury. If a judge, rather than a jury, may take evidence and
make findings of fact, the thinking goes, the proceeding
                  Cite as: 

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                      Opinion of the Court

should be as confined as possible. Id., at 25–26; see also
Apprendi, 530 U. S., at 487–490 (citing Almendarez-Torres
v. United States, 

 (1998)). But Sixth Amend-
ment 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
Congress took significant 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 been convicted of a disqualifying crime. The Eighth Cir-
cuit correctly held that Mr. Pereida failed to carry this bur-
den. Its judgment is
                                                    Affirmed.

  JUSTICE BARRETT took no part in the consideration or
decision of this case.
                  Cite as: 

 (2021)            1

                     BREYER, J., dissenting

SUPREME COURT OF THE UNITED STATES
                          _________________

                           No. 19–438
                          _________________


   CLEMENTE AVELINO PEREIDA, PETITIONER v.
    ROBERT M. WILKINSON, ACTING ATTORNEY
                  GENERAL
 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
           APPEALS FOR THE EIGHTH CIRCUIT
                         [March 4, 2021]

  JUSTICE 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 specified 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 find that
the conviction was not for such a crime. The relevant doc-
uments 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
2                  PEREIDA v. WILKINSON

                     BREYER, J., dissenting

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 cancel his removal. The Attorney General has
discretion to cancel an order of removal if removal would
result in extreme hardship to the noncitizen’s U. S. citizen
(or lawful-permanent-resident) spouse, parent, or child. 8
U. S. C. §1229b(b)(1)(D). A noncitizen is ineligible for this
discretionary 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 vio-
lation 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 ineligi-
ble for cancellation of removal if that noncitizen has been
“convicted” of certain “offense[s],” 8 U. S. C. §1229b(b)
(1)(C), including “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 firearm as a felon if that defendant has three
or more previous “convictions” for a “violent felony” or “se-
rious drug offense.” 

(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 statute forbids. So the question arises, shall a
                  Cite as: 

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                      BREYER, J., dissenting

judge look to how the noncitizen or defendant behaved on a
particular occasion (for example, to see whether he behaved
violently)? Or shall a judge look to the statute that the de-
fendant was convicted of violating (to see whether the be-
havior that it forbids is categorically violent)?
   We have answered this question clearly and repeatedly
in both the INA and ACCA contexts. We have held that
both statutes mandate a categorical approach by asking
what offense a person was “convicted” of, not what acts he
“committed.” Moncrieffe v. Holder, 

(2013) (emphasis added) (discussing the INA); see also Tay-
lor v. United States, 

 (1990) (discussing
ACCA). The categorical approach requires courts to “loo[k]
only to the statutory definitions of the prior offenses, and
not to the particular facts underlying those convictions.”

; see also Esquivel-Quintana v. Sessions, 

, ___–___ (2017) (slip op., at 2–3) (applying the cat-
egorical approach under the INA); Mellouli v. Lynch, 

, 804–806 (2015) (same); Moncrieffe, 

 (same); Carachuri-Rosendo v. Holder, 

 (2010) (same); Gonzales v. Duenas-Alvarez, 

, 185–186 (2007) (same); Mathis v. United States, 

, ___ (2016) (slip op., at 3) (applying the categorical
approach under ACCA); Johnson v. United States, 

 (2010) (same); Descamps v. United States, 

 (2013) (same); Shepard v. United States, 

, 19–20 (2005) (same); Taylor, 

(same). A judge, looking at a prior conviction, will read the
statutory definition of the offense of conviction and decide
whether anyone convicted under that offense is necessarily
guilty of the type of crime that triggers federal penalties,
e.g., an enhanced sentence or ineligibility for cancellation of
removal. See Mellouli, 

; Taylor, 

.
   Consider a hypothetical example of this approach. Sup-
pose a noncitizen’s previous conviction was for violating
4                  PEREIDA v. WILKINSON

                     BREYER, J., dissenting

State Statute §123. Suppose further that the Government
argues the noncitizen is ineligible for cancellation of re-
moval 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 conviction, will simply read §123 and decide
whether anyone convicted under §123 is necessarily guilty
of an aggravated felony, as that term is defined in the INA.
See §1101(a)(43). That is, the judge will decide whether the
conduct that §123 prohibits is in general an aggravated fel-
ony. The judge will not look to see whether the defendant’s
actual conduct on the relevant occasion was or was not an
aggravated felony.
   Difficult 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” un-
der the INA. §1101(a)(43)(G). We can assume that the term
“burglary” here, as in ACCA, refers to a specific crime, i.e.,
generic burglary. See Taylor, 

; cf. Duenas-
Alvarez, 

 (accepting that the INA’s refer-
ence to “theft” in §1101(a)(43)(G) is to generic theft). Ge-
neric burglary is “unlawful or unprivileged entry into, or
remaining in, a building or structure, with intent to commit
a crime.” Taylor, 

. Now suppose that §123
defines “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 el-
ements of generic burglary. If the minimum conduct crim-
inalized 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
Moncrieffe, 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”
                  Cite as: 

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                     BREYER, J., dissenting

into several different offenses, some of which are aggra-
vated felonies and some of which are not? Suppose, for ex-
ample, that §123 has three subsections referring to (a) bur-
glary of a dwelling, (b) burglary of a boat, and (c) burglary
of a railroad car. Since generic burglary is of a dwelling or
structure, only subsection (a) qualifies as an aggravated fel-
ony. How is the judge to know which subsection the defend-
ant was convicted of violating? Simple, we have replied.
Under the “modified 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, 

, and
the plea agreement, plea colloquy, or “some comparable ju-
dicial record” of the plea (if there was a plea), Shepard, 

; see also Nijhawan v. Holder, 

(2009) (quoting Shepard, 

). 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 modified 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 neces-
sarily had to find” (or the defendant necessarily admitted
to) a violent felony. 

.
   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 viola-
tion of §123. Period. What then? As discussed infra, at 9,
that is the question we face here, and our cases provide the
answer. The judge cannot look at evidence beyond the spec-
ified court records. See, e.g., Mathis, 579 U. S., at ___ (slip
op., at 18). Instead, in such a case, the judge is to determine
6                   PEREIDA v. WILKINSON

                      BREYER, J., dissenting

what the defendant necessarily admitted (or what a jury
necessarily found) in order for a court to have entered a con-
viction under §123, since that is the conviction reflected in
the permissible documents.
   The purpose of the modified categorical approach, like the
categorical approach it helps implement, is to compare
what “was necessarily found or admitted” to the elements
of the generic federal offense. Id., at ___ (slip op., at 4). If
the record materials do not specify that the defendant was
convicted of §123(a) (dwelling) rather than §123(b) (boat) or
§123(c) (railroad car), or if the record materials do not exist
at all, then the sentencing judge cannot say that generic
burglary was necessarily found or admitted. The Court has
said as much before. In Shepard, the Court acknowledged
that both the “vagaries of abbreviated plea records” and the
destruction of “stenographic notes” of a jury charge would
preclude the application of ACCA. 

. In
Mathis, the Court explained that if the “record materials”
do not “speak plainly,” then “a sentencing judge will not be
able to satisfy ‘Taylor’s demand for certainty’ when deter-
mining whether a defendant was convicted of a generic of-
fense.” 579 U. S., at ___ (slip op., at 18). And we applied
this principle in Johnson, holding that a prior conviction did
not count as a “violent felony” under ACCA because the
statute of conviction swept more broadly than a “violent fel-
ony” and “nothing in the record of [the] conviction permitted
the District Court to conclude that it rested upon anything
more than the least of th[e] acts” prohibited by the state
statute. See 

; see also 

 (“[I]n
many cases state and local records from” state convictions
“will be incomplete” and “frustrate application of the modi-
fied 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
                  Cite as: 

 (2021)             7

                     BREYER, J., dissenting

necessarily for an aggravated felony. Applying the categor-
ical approach, the judge must find 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
the Mojave Desert, it seems unlikely that the conviction
was based on burglary of a boat. Yet, in the absence of an
indication from the permissible documents that the convic-
tion 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 prac-
ticality. Immigration judges and sentencing judges have
limited time and limited access to information about prior
convictions. See Mellouli, 

; Moncrieffe, 569
U. S., at 200–201; Shepard, 

. The vast
majority of prior convictions reflect simple guilty pleas to
the crime charged, and, where the record papers are silent,
efforts to uncover which of several crimes was “really” at
issue can force litigation that the guilty plea avoided. 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 find out which of the several provisions
was the basis for the conviction, it might be necessary to
call as witnesses the defendant, the prosecutor, or even the
judge, and question them about a criminal proceeding that
perhaps took place long ago. To make his case, the 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
8                  PEREIDA v. WILKINSON

                     BREYER, J., dissenting

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.
And in the ACCA context, a sentencing judge, even where
ACCA is inapplicable, has some discretion in determining
the length of a sentence. If he finds that the present de-
fendant in fact burgled, say, a dwelling and not a boat, he
can take that into account even if the sentencing enhance-
ment does not apply.
   And most importantly, whatever the costs and benefits of
the categorical approach, it is what Congress has long cho-
sen with respect to both statutes. The categorical approach
has a particularly “long pedigree in our Nation’s immigra-
tion law,” tracing back to 1913. Moncrieffe, 

. As the majority acknowledges, “Congress could have
(and sometimes has) used statutory language requiring
courts to ask whether the defendant’s actual conduct meets
certain specified criteria.” Ante, at 8, n. 2. But it has not
done so in the INA provision here. See ante, at 8. Thus,
here, as in the case of ACCA, a judge must ask whether “a
conviction of the state offense ‘ “necessarily” involved . . .
facts equating to’ ” the kind of behavior that the relevant
federal statute forbids. Moncrieffe, 

 (em-
phasis added). Only if it did does that conviction trigger
federal penalties.
                 Cite as: 

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                     BREYER, J., dissenting

                              III
   Now, let us apply the categorical approach to the convic-
tion here at issue. The criminal complaint says that Mr.
Pereida “intentionally engage[d] in conduct which . . . con-
stituted 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 vi-
olating. And the majority, like the Government, concedes
that some of the provisions set forth crimes that are not
crimes involving moral turpitude. See ante, at 10; Brief for
Respondent 15.
   The journal entry and order related to the charge do not
help. They say only that Mr. Pereida pleaded “no contest”
to the crime charged, identifying the relevant statute as
Neb. Rev. Stat. §28–201 (the attempt provision) and de-
scribing the charge as “[a]ttempt of a class 3A or class 4
felo[ny].” App. to Brief for Petitioner 3a. They do not nar-
row 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 instructions 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 cannot
characterize the conviction as a conviction for a crime in-
volving moral turpitude. That resolves this case.
10                 PEREIDA v. WILKINSON

                     BREYER, J., dissenting

                               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 seek-
ing 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
the offense of conviction without committing a crime involv-
ing moral turpitude). Ante, at 8–9, 14. In my view, there is
no unresolved “threshold factual” question in this case since
there is no dispute that Mr. Pereida has a prior conviction.
We have made clear that unless the offense of conviction, as
determined from the statute and the specified documents,
is necessarily a crime involving moral turpitude, the judge
must rule that the conviction was not for a crime involving
moral turpitude. The method for determining the offense
of conviction (the modified categorical approach) “acts not
as an exception, but instead as a tool,” retaining “the cate-
gorical approach’s central feature.” Descamps, 

. Here, looking at the pertinent documents, we can con-
clude only that Mr. Pereida pleaded guilty to the minimum
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 involving
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
                  Cite as: 

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                      BREYER, J., dissenting

to a question that a judge must answer based on specified
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., 

, 326 (2015). And legal ques-
tions are not affected by a burden of proof. See, e.g., Mi-
crosoft Corp. v. i4i L. P., 

 (2011).
   The majority points out that we have occasionally re-
ferred to the “ ‘fact of a prior conviction.’ ” Ante, at 13. The
majority reads too much into that reference. All that we
have seriously referred to as a fact is the “mere fact of con-
viction.” Taylor, 

 (emphasis added). Es-
tablishing that basic fact is, of course, a prerequisite to ap-
plication of the categorical approach at all. It goes to “the
validity of a prior judgment of conviction.” Apprendi v. New
Jersey, 

 (2000). But the mere fact of con-
viction is not at issue here. Instead, the question here (and
the question the categorical approach asks) is “what [that]
conviction necessarily established.” Mellouli, 

. We have referred to that question as a “legal question.”

 And rightly so. Thus, if the majority applies the cat-
egorical approach, it should agree that there is no factual
dispute in this case for any burden of proof to resolve. If the
majority does not apply the categorical 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 “satisfies the applicable eligibil-
ity requirements,” §1229a(c)(4)(A), which includes the re-
quirement that he not have been convicted of a crime in-
volving moral turpitude. See ante, at 5. But burdens of
proof have nothing to do with this case. As just discussed,
because the categorical approach conclusively resolves the
ambiguity as to which offense was the basis for the convic-
tion, there is no role for the burden of proof to play. Indeed,
12                 PEREIDA v. WILKINSON

                     BREYER, J., dissenting

the Government agreed at argument that the burden of
proof would not apply “if this were just a categorical ap-
proach case.” Tr. of Oral Arg. 53. That this case implicates
the modified categorical approach rather than the categor-
ical approach does not make a difference. The modified cat-
egorical 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 11, n. 4, but by permitting
courts to look at only certain conclusive records of a convic-
tion to determine what that conviction necessarily involved.
   This conclusion is consistent with the text. The statutory
text itself “singl[es] out this lone requirement for special
treatment,” ante, at 6, by using a term (“conviction”) that
requires application of a categorical rather than factual
analysis. The burden-of-proof provision does not require
departing from our settled understanding of the meaning of
that term. That the categorical approach applies does not
mean that the burden of proof is entirely irrelevant to the
requirement that a noncitizen not have a disqualifying
prior conviction. The burden of proof may be relevant when
“the existence of [a] conviction” is in doubt.             See
§§1229a(c)(3)(B)(iii), (iv), (vi). Such doubt may have arisen,
for example, if Mr. Pereida had contested that a complaint
submitted by the Government actually resulted in a convic-
tion or contended that the conviction is against a different
Clemente Avelino Pereida. See ante, at 12. 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
material, whether the crime of conviction is or is not a crime
                  Cite as: 

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                     BREYER, J., dissenting

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” re-
lied on by the majority further demonstrate that burdens of
proof are not relevant to the question at hand. See ante, at
7, 11, n. 5. As the majority points out, the INA sets forth a
list of particular materials that, the INA says, “shall consti-
tute proof of a criminal conviction.” §1229a(c)(3)(B). They
include an “official record of judgment and conviction,” an
“official record of plea, verdict, and sentence,” a “docket en-
try from court records that indicates the existence of the
conviction,” court minutes of a “transcript . . . in which the
court takes notice of the existence of the conviction,” an of-
ficial “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 in-
stitution.” Ibid. The majority also notes that the INA au-
thorizes an immigration judge to make “credibility determi-
nation[s]” about a noncitizen’s written and oral proof and
determine whether “testimony is credible, is persuasive,
and refers to specific facts sufficient to demonstrate that the
applicant has satisfied 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 mod-
ified categorical approach cases. See ante, at 16–17.
   I agree with the majority that bearing the burden of proof
goes hand in hand with being able to introduce this evi-
dence. But in my view, Mr. Pereida cannot introduce this
evidence because it goes beyond the limited record our prec-
edents allow. Hence, he must not bear the burden of proof.
The majority’s response is that there is no limitation on the
documents an immigration judge can look at when applying
the categorical approach. That is because, the majority
says, the limitation was adopted in the criminal context out
of a concern for Sixth Amendment rights that is not present
14                 PEREIDA v. WILKINSON

                     BREYER, J., dissenting

in the immigration context. Ibid. That was not, however,
our only, or even primary, reason for adopting the limita-
tion. Rather, we limited the documents that a judge can
review in order “to implement the object of the statute and
avoid evidentiary disputes.” Shepard, 

.
To be sure, we were there referencing ACCA, not the INA.
But the statutes share the relevant object (tying federal
penalties to certain convictions, not certain conduct) sig-
naled by the same statutory text (“conviction”). See Taylor,

; Mellouli, 

. The “central
feature” of this statutory object is “a focus on the elements,
rather than the facts, of a crime.” Descamps, 

. 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 coun-
sels against departing from how we have long understood
that approach to work. Mellouli, 575 U. S., at 805–806. Al-
though this Court first applied the categorical approach in
the criminal context, see ante, at 7, 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
categorical approach’s limitation on the documents a judge
can consult is inapplicable in immigration proceedings.
That argument was neither raised nor briefed by the par-
ties. The Government confirmed several times at oral ar-
gument that it had not argued that a judge should be al-
lowed 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.
                  Cite as: 

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                     BREYER, J., dissenting

Without the benefit of briefing and argument, we cannot
fully anticipate the consequences 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 prac-
tical difficulties and potential unfairness that Congress in-
tended 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
efficiency” that the categorical approach is intended to pro-
mote. Moncrieffe, 

. As we have recognized
before, “[a]sking immigration judges in each case to deter-
mine the circumstances underlying a state conviction would
burden a system in which ‘large numbers of cases [are re-
solved by] immigration judges and front-line immigration
officers, often years after the convictions.’ ” Mellouli, 

 (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 prose-
cutor 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 officials who have imperfect memories or who have
long since departed for other places or taken up new occu-
pations, there is a real risk of adding time and complexity
to immigration proceedings. Such hearings may add strain
to “our Nation’s overburdened immigration courts.”
Moncrieffe, 

.
   Second, today’s decision may make the administration of
immigration law less fair and less predictable. One virtue
16                 PEREIDA v. WILKINSON

                     BREYER, J., dissenting

of the categorical approach is that it “enables aliens ‘to an-
ticipate the immigration consequences of guilty pleas in
criminal court,’ and to enter ‘ “safe harbor guilty” pleas
[that] do not expose the [alien defendant] to the risk of im-
migration sanctions.’ ” Mellouli, 

 (altera-
tions in original). The majority’s approach, on the other
hand, may “deprive some defendants of the benefits of their
negotiated plea deals.” Descamps, 

. A
noncitizen may agree to plead guilty to a specific offense in
a divisible statute because that offense does not carry ad-
verse immigration consequences. But in many lower crim-
inal courts, misdemeanor convictions are not on the record.
See Brief for National Association of Criminal Defense
Lawyers et al. as Amici Curiae 7–9 (NACDL Brief ); Brief
for United States in Johnson v. United States, O. T. 2008,
No. 08–6925, p. 43 (“[P]lea colloquies . . . are not always
transcribed or otherwise available”). In jurisdictions where
misdemeanor convictions 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 mis-
demeanor cases are often unavailable or incomplete”). And
even where complete records do exist, noncitizens, who of-
ten are unrepresented, detained, or not fluent English
speakers, may not have the resources to offer more than
their own testimony. See Brief for Immigrant Defense Pro-
ject et al. as Amici Curiae 11–19. Thus, under the major-
ity’s approach, noncitizens may lose the benefit of their plea
agreements unless their testimony persuades the immigra-
tion judge that they pleaded guilty to the lesser offense.
   Third, today’s decision risks hinging noncitizens’ eligibil-
ity 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
                  Cite as: 

 (2021)           17

                     BREYER, J., dissenting

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
records of misdemeanor pleas often do not include the stat-
utory subsection or factual basis underlying the convic-
tion”). 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 di-
visible statute for an indivisible one, she may well not iden-
tify which particular offense was the basis for the charge.
Some States, including Nebraska, do not require a pleading
to identify the alternative means of committing a crime—
as opposed to the alternative crimes—on which a conviction
is based. See 5 W. LaFave, J. Israel, N. King, & O. Kerr,
Criminal Procedure §19.3(a), p. 263 (3d ed. 2007); State v.
Brouilette, 

, 

 (2003)
(“[T]his court has made clear that certain crimes are single
crimes that can be proved under different theories, and that
because each alternative theory is not a separate crime, the
alternative theories do not require that the crime be
charged as separate alternative counts”). When a divisible
statute is wrongly treated as indivisible, for whatever rea-
son, records will be “inconclusive” because the defendant
was not, as a matter of fact, convicted of any particular al-
ternative crime. It would be unfair for mandatory deporta-
tion to result from inconclusive records in these cases.
   The Court dismisses these “policy” concerns on the
ground that Congress has chosen “to conclude that uncer-
tainty about an alien’s prior conviction should not redound
to his benefit.” Ante, at 16. But Congress made precisely
the opposite choice by tying ineligibility for relief to a
noncitizen’s “conviction.” That text mandates a categorical
approach in which uncertainty about a conviction redounds
to a noncitizen or defendant’s benefit. The approach is un-
derinclusive by design, and the majority’s “objection to th[e
categorical approach’s] underinclusive result is little more
18                 PEREIDA v. WILKINSON

                     BREYER, J., dissenting

than an attack on the categorical approach itself.”
Moncrieffe, 

.
  Finally, it makes particularly little sense to disregard
this core feature of the categorical approach here. See 

at 203–204. As already noted, cancellation of removal is
discretionary. Thus, when a conviction is not disqualifying
under the categorical approach, the Government may still
deny the noncitizen relief. If it turns out that an individual
with a record like the one here in fact violated the statute
in a reprehensible manner, that can be accounted for during
the discretionary phase of the proceedings, when the cate-
gorical approach does not apply.
                         *     *    *
  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 John-
son. 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 involv-
ing moral turpitude.”
  Because the Court comes to a different conclusion, with
respect, I dissent.