Pereida v. Wilkinson
The Supreme Court ruled that immigrants seeking to cancel a deportation order must prove their prior conviction was not for a disqualifying crime, and that an ambiguous criminal record counts against the immigrant — not the government.
The decision resolves a split among federal appeals courts and means immigrants cannot benefit from unclear or incomplete court records when applying for discretionary relief from removal.
How it got here: An immigration judge found Pereida ineligible for cancellation of removal; the Board of Immigration Appeals affirmed; the Eighth Circuit agreed; Pereida asked the Supreme Court to step in to resolve a circuit split, and the Court agreed to hear the case.
The Case in Depth
What happened
Clemente Avelino Pereida, a Mexican citizen who had lived unlawfully in the United States for roughly 25 years and raised three children here, conceded he was subject to deportation and sought to cancel his removal order. While his immigration case was pending, he was convicted of a Nebraska crime — attempted criminal impersonation — under a statute listing four separate offenses, only one of which (carrying on a business without a license) did not involve fraud and thus did not disqualify him. The court record was ambiguous about which of the four offenses formed the basis of his conviction.
The question before the Court
When an immigrant seeking to cancel a deportation order was convicted under a state law listing multiple crimes — some disqualifying, some not — and the court record is ambiguous about which crime he committed, must he prove the conviction was not for a disqualifying offense, or does the ambiguity work in his favor?
The Court's answer
No — an immigrant seeking to cancel a deportation order must prove he was not convicted of a disqualifying crime, and when court records are ambiguous about which of several offenses in the same law he was convicted of, that ambiguity works against him.
Pereida argued that the "categorical approach" — a legal method that focuses on whether a conviction necessarily involves certain conduct rather than the actual facts — could resolve the ambiguity in his favor. The Court disagreed. The categorical approach first requires identifying as a matter of historical fact which specific crime formed the basis of the conviction. That is a factual question, subject to ordinary burden-of-proof rules. Because Pereida bore the burden of proving his eligibility for relief and declined to produce evidence clarifying his conviction — even after the government submitted a complaint suggesting fraud — the ambiguity defeated his claim.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Immigrants applying to cancel a removal order who have prior convictions under laws listing multiple offenses must affirmatively prove their conviction was for a non-disqualifying crime. Ambiguous or incomplete records — even caused by poor state court record-keeping — count against the immigrant. This may be especially difficult for immigrants who are unrepresented, not fluent in English, or whose old criminal records no longer exist.
What changes now
The Eighth Circuit's ruling against Pereida is affirmed, and he remains ineligible for discretionary cancellation of removal. Going forward, immigrants nationwide who seek cancellation of removal and have prior convictions under divisible statutes must affirmatively produce evidence identifying which offense formed the basis of their conviction. Immigration courts will also continue to apply burden-of-proof rules to this factual determination rather than resolving the ambiguity in the immigrant's favor.
What this does not decide
The Court acknowledged that an immigrant could still succeed by showing that none of the offenses in the divisible statute qualify as disqualifying — that avenue was simply unavailable here because some Nebraska offenses clearly involved fraud. The ruling also did not fully resolve whether immigration courts may consult a broader range of evidence than criminal sentencing courts when applying the categorical approach.
Concurrences and dissents
Dissent — Justice Breyer
Justice Breyer argued this case has little to do with burdens of proof and everything to do with the categorical approach. Under that approach, if the permissible court documents do not show that the conviction necessarily involved a crime of moral turpitude, the judge must treat the conviction as not disqualifying — period. Because the available records in Pereida's case spoke only of a generic violation of the Nebraska statute without identifying a subsection, the categorical approach required a ruling in Pereida's favor. Breyer also warned the majority's approach would burden immigration courts, undermine the predictability of plea deals for noncitizens, and produce unfairness that Congress designed the categorical approach to prevent.
How the Court got there
The legal reasoning, step by step
- The Immigration and Nationality Act expressly places the burden of proof on an immigrant seeking to cancel a removal order to prove all four eligibility requirements, including that he has not been convicted of a 'crime involving moral turpitude.' Nothing in the statute singles out the criminal-conviction requirement for different or more lenient treatment.
- Three nearby INA provisions confirm this reading: the Act specifies evidence that 'shall constitute proof' of a criminal conviction in any proceeding; it assigns the government the burden of proving a disqualifying crime in removal proceedings but explicitly flips that burden for applications for discretionary relief; and it requires immigrants seeking admission — a more favorable posture — to prove the absence of disqualifying crimes.
- Pereida argued that the 'categorical approach' — which asks not what he actually did, but whether his offense of conviction necessarily involves disqualifying conduct — meant he could satisfy his burden without pointing to evidence about his specific crime. The Court rejected this as an overstatement of the categorical approach.
- The categorical approach actually involves two steps: a factual inquiry (which specific crime in the statute was the person convicted of?) and a hypothetical inquiry (could someone commit that specific crime without engaging in disqualifying conduct?). Nebraska's statute listed four separate stand-alone offenses, making it a 'divisible' statute — and that factual, threshold question could not be bypassed.
- For divisible statutes, courts use the 'modified categorical approach,' reviewing a limited set of court documents — such as charging papers or plea colloquies — to determine which specific offense the person was convicted of. That determination is a question of historical fact, and the party who bears the burden of proof bears the risk of an inconclusive record.
- Because three of Nebraska's four offenses involved fraud and thus were disqualifying crimes of moral turpitude, Pereida had to show as a factual matter that his conviction was for the one non-disqualifying offense. He declined to produce any evidence on that point, even after the government introduced a complaint suggesting he was charged with using a fraudulent Social Security card. An evidentiary gap in a case where the immigrant bears the burden works against the immigrant, just as it works against the government in criminal cases where the government bears the burden.
Doctrinal impact
Cases affected by this decision
Distinguishes Johnson v. United States (559 U. S. 133)
Johnson favored the defendant because the government bore the burden; here the immigrant bears the burden, so ambiguity hurts him.
Distinguishes Moncrieffe v. Holder (569 U. S. 184)
Moncrieffe addressed only whether minimum conduct categorically triggered consequences, not which crime was the basis of conviction.
Distinguishes Carachuri-Rosendo v. Holder (560 U. S. 563)
Like Moncrieffe, addressed only the hypothetical categorical question, not the threshold factual question of which crime was committed.
Reaffirms Taylor v. United States (495 U. S. 575)
Reaffirmed as the foundation of the categorical approach, which looks to the fact of conviction rather than the defendant's actual conduct.