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 burdens of proof. It concerns the application of what we
have called the “categorical approach” to determine the nature of a
crime that a noncitizen (or defendant) was previously convicted of
committing. That approach sometimes allows a judge to look at, and
to look
only at, certain specified documents. Unless those
documents show that the crime of conviction
necessarily
falls within a certain category (here a “crime involving moral
turpitude”), the judge must find that the conviction was not for
such a crime. The relevant documents in this case do not show that
the previous conviction at issue necessarily was for a crime
involving moral turpitude. Hence, applying the categorical
approach, it was not. That should be the end of the case.
I
Mr. 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 cleaning. One
child is a U. S. citizen. In 2009 the Department of Homeland
Security issued a notice to appear that charged Mr. Pereida with
removability because he was never lawfully admitted to the United
States. Mr. Pereida conceded that he is removable. But he asked the
Attorney General to 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 violation 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
Immigration and Nationality Act (INA) makes a noncitizen ineligible
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 “serious drug
offense.” 18 U. S. C. §924(e)(1). In ordinary speech,
“crime,” “offense,” and “felony” are ambiguous: They might refer to
actions that a defendant took on a particular occasion, or they
might refer to the general conduct that a criminal statute forbids.
So the question arises, shall a 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 defendant was convicted of violating (to see whether the
behavior 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,
569 U.S.
184, 191 (2013) (emphasis added) (discussing the INA); see also
Taylor v.
United States,
495
U.S. 575, 600 (1990) (discussing ACCA). The categorical
approach requires courts to “loo[k ] only to the statutory
definitions of the prior offenses, and not to the particular facts
underlying those convictions.”
Id., at 600; see also
Esquivel-Quintana v.
Sessions, 581 U. S. ___,
___–___ (2017) (slip op., at 2–3) (applying the categorical
approach under the INA);
Mellouli v.
Lynch, 575 U.S.
798, 804–806 (2015) (same);
Moncrieffe, 569 U. S., at
190 (same);
Carachuri-Rosendo v.
Holder,
560 U.S.
563, 576 (2010) (same);
Gonzales v.
Duenas-Alvarez,
549 U.S.
183, 185–186 (2007) (same);
Mathis v.
United
States, 579 U. S. ___, ___ (2016) (slip op., at 3)
(applying the categorical approach under ACCA);
Johnson v.
United States,
559 U.S.
133, 144 (2010) (same);
Descamps v.
United
States,
570 U.S.
254, 257 (2013) (same);
Shepard v.
United States,
544 U.S.
13, 19–20 (2005) (same);
Taylor, 495 U. S., at 600
(same). A judge, looking at a prior conviction, will read the
statutory definition of the offense of conviction and decide
whether anyone convicted under that offense is necessarily guilty
of the type of crime that triggers federal penalties,
e.g.,
an enhanced sentence or ineligibility for cancellation of removal.
See
Mellouli, 575 U. S., at 805;
Taylor, 495
U. S., at 600.
Consider a hypothetical example of this
approach. Suppose a noncitizen’s previous conviction was for
violating State Statute §123. Suppose further that the Government
argues the noncitizen is ineligible for cancellation of removal
because he was “convicted of an offense under” §1227(a)(2), namely,
an “aggravated felony.” 8 U. S. C. §§1229b(b)(1)(C),
1227(a)(2)(A)(iii). An immigration judge, looking at the
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 felony. The judge will
not look to see
whether the defendant’s actual conduct on the relevant occasion was
or was not an aggravated felony.
Difficult questions can arise when judges apply
the categorical approach. State statutes criminalize many kinds of
behavior, often differing in detail one from another. Take
burglary, for example, which is an “aggravated felony” under the
INA. §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, 495 U. S., at 599; cf.
Duenas-Alvarez, 549 U. S., at 189 (accepting that the
INA’s reference to “theft” in §1101(a)(43)(G) is to generic theft).
Generic burglary is “unlawful or unprivileged entry into, or
remaining in, a building or structure, with intent to commit a
crime.”
Taylor, 495 U. S., at 599. Now suppose that
§123 defines “burglary” in a different way (say, by including
lawful entry with intent to steal). The sentencing judge then must
compare the elements of the state statute and the elements of
generic burglary. If the minimum conduct criminalized by the state
statute is encompassed by generic burglary, 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” into several different offenses, some of which are
aggravated felonies and some of which are not? Suppose, for
example, that §123 has three subsections referring to (a) burglary
of a dwelling, (b) burglary of a boat, and (c) burglary of a
railroad car. Since generic burglary is of a dwelling or structure,
only subsection (a) qualifies as an aggravated felony. How is the
judge to know
which subsection the defendant 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 instructions (if there was a jury), see
Taylor,
495 U. S., at 602, and the plea agreement, plea colloquy, or
“some comparable judicial record” of the plea (if there was a
plea),
Shepard, 544 U. S., at 26; see also
Nijhawan v.
Holder,
557 U.S.
29, 35 (2009) (quoting
Shepard, 544 U. S., at 26).
If these documents 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
sentencing enhancement) if the statute contains multiple offenses
and the permissible documents show that “the jury
necessarily had to find” (or the defendant necessarily admitted to)
a violent felony. 495 U. S., at 602.
What if, after looking at all the sources we
have listed, the judge still does not know which of the three
different kinds of burglary was the basis for the conviction?
Suppose all the relevant documents that exist speak
only of
a violation of §123. Period. What then? As discussed
infra,
at 9, that is the question we face here, and our cases provide the
answer. The judge cannot look at evidence beyond the specified
court records. See,
e.g.,
Mathis, 579 U. S., at
___ (slip op., at 18). Instead, in such a case, the judge is to
determine what the defendant necessarily admitted (or what a jury
necessarily found) in order for a court to have entered a
conviction under §123, since that is the conviction 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. 544
U. S., at 22. In
Mathis, the Court explained that if
the “record materials” do not “speak plainly,” then “a sentencing
judge will not be able to satisfy ‘
Taylor’s demand for
certainty’ when determining whether a defendant was convicted of a
generic offense.” 579 U. S., at ___ (slip op., at 18). And we
applied this principle in
Johnson, holding that a prior
conviction did not count as a “violent felony” under ACCA because
the statute of conviction swept more broadly than a “violent
felony” and “nothing in the record of [the] conviction permitted
the District Court to conclude that it rested upon anything more
than the least of th[e] acts” prohibited by the state statute. See
559 U. S., at 137; see also
id., at 145 (“[I]n many
cases state and local records from” state convictions “will be
incomplete” and “frustrate application of the modified categorical
approach”).
That is to say, if (as far as the available,
listed documents reveal) the judge could have entered the
conviction without the noncitizen admitting to burglarizing a
dwelling, then the immigration judge cannot hold that the
conviction is necessarily for an aggravated felony. Applying the
categorical approach, the judge must find the conviction is not for
an aggravated felony at all.
B
Why would Congress have chosen such a
seemingly complicated method? The method would appear sometimes to
lead to counterintuitive results. After all, if the prior crime is
for burglary and the offense occurred in a small town near the
Mojave Desert, it seems unlikely that the conviction was based on
burglary of a boat. Yet, in the absence of an indication from the
permissible documents that the conviction necessarily was for
burglary of a dwelling, the judge cannot classify the crime of
conviction as an “aggravated felony.”
The primary reason for choosing this system lies
in practicality. Immigration judges and sentencing judges have
limited time and limited access to information about prior
convictions. See
Mellouli, 575 U. S., at 806;
Moncrieffe, 569 U. S., at 200–201;
Shepard, 544
U. S., at 23, n. 4. The vast majority of prior
convictions reflect simple guilty pleas to the crime charged, and,
where the record papers are silent, efforts to uncover which of
several crimes was “really” at issue can force litigation that the
guilty plea avoided. Suppose that the defendant in the Mojave
Desert pleaded guilty to a violation of §123 and there is no
indication in the relevant record documents which subsection was
the basis 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 defendant might now deny
that the provision involving a dwelling was at issue, and he might
seek the opportunity to prove that. As a result, the immigration
judge or sentencing judge now might have to conduct the very
fact-based proceeding that the earlier guilty plea was designed to
avoid. See
id., at 21–23.
I do not know how often this kind of
counterintuitive example will arise. But I do know that, in such a
case, there is a safeguard against the harms that the “prior
conviction” provisions are designed to stop. In the INA context, if
a noncitizen is eligible for cancellation of removal, the Attorney
General has
discretionary power to cancel the removal order.
Where he believes the noncitizen in fact previously burgled a
dwelling (or worse), he can simply deny relief. And in the ACCA
context, a sentencing judge, even where ACCA is inapplicable, has
some discretion in determining the length of a sentence. If he
finds that the present defendant in fact burgled, say, a dwelling
and not a boat, he can take that into account even if the
sentencing enhancement does not apply.
And most importantly, whatever the costs and
benefits of the categorical approach, it is what Congress has long
chosen with respect to both statutes. The categorical approach has
a particularly “long pedigree in our Nation’s immigration law,”
tracing back to 1913.
Moncrieffe, 569 U. S., at 191. As
the majority acknowledges, “Congress could have (and sometimes has)
used statutory language requiring courts to ask whether the
defendant’s actual conduct meets certain specified criteria.”
Ante, at 8, n. 2. But it has not done so in the INA
provision here. See
ante, at 8. Thus, here, as in the case
of ACCA, a judge must ask whether “a
conviction of the state
offense ‘ “necessarily” involved . . . facts
equating to’ ” the kind of behavior that the relevant federal
statute forbids.
Moncrieffe, 569 U. S., at 190
(emphasis added). Only if it did does that conviction trigger
federal penalties.
III
Now, let us apply the categorical approach to
the conviction here at issue. The criminal complaint says that Mr.
Pereida “intentionally engage[d] in conduct which . . .
constituted a substantial step in a course of conduct intended to
culminate in his commission of the crime of CRIMINAL IMPERSONATION
R.S. 28–608, Penalty: Class IV Felony.” App. to Brief for
Petitioner 7a. It then quotes the entire criminal-impersonation
statute, including all of its parts. See
id., at 7a–8a. The
complaint does not say which part of the statutory provision the
State accuses Mr. Pereida of violating. And the majority, like the
Government, concedes that some of the provisions set forth crimes
that are not crimes involving moral turpitude. See
ante, at
10; Brief for Respondent 15.
The journal entry and order related to the
charge do not help. They say only that Mr. Pereida pleaded “no
contest” to the crime charged, identifying the relevant statute as
Neb. Rev. Stat. §28–201 (the attempt provision) and describing the
charge as “[a]ttempt of a class 3A or class 4 felo[ny].” App. to
Brief for Petitioner 3a. They do not narrow down the possible
offenses because all the criminal- impersonation offenses can be a
Class III or Class IV felony. See Neb. Rev. Stat. §§28–608(2)(a),
(b). We cannot look to jury 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 involving moral turpitude. That resolves
this case.
IV
How does the majority argue to the contrary?
The majority says that this case is different because which crime
was the basis of a prior conviction is a factual question that the
categorical approach cannot answer and a noncitizen seeking
cancellation of removal, unlike a criminal defendant, bears the
burden of proof on that factual question.
First, the majority says that what the
defendant’s “
actual offense of conviction was,” is a
“threshold factual” question that a court must resolve before
tackling the categorical approach’s “
hypothetical question”
(could someone complete the offense of conviction without
committing a crime involving moral turpitude).
Ante, at 8–9,
14. In my view, there is no unresolved “threshold factual” question
in this case since there is no dispute that Mr. Pereida has a prior
conviction. We have made clear that unless the offense of
conviction, as determined from the statute and the specified
documents, is
necessarily a crime involving moral turpitude,
the judge must rule that the conviction was not for a crime
involving moral turpitude. The method for determining the offense
of conviction (the modified categorical approach) “acts not as an
exception, but instead as a tool,” retaining “the categorical
approach’s central feature.”
Descamps, 570 U. S., at
263. Here, looking at the pertinent documents, we can conclude only
that Mr. Pereida pleaded guilty to the minimum conduct necessary to
complete an offense under 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 approach resolves, not a threshold question. And it is
a legal question, not a factual one. To answer it, the judge is to
examine the state statute and limited portions of the record that
our cases specify and determine from those documents whether the
crime of conviction was a crime involving moral turpitude. There is
nothing at all unusual about referring 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.,
574 U.S.
318, 326 (2015). And legal questions are not affected by a
burden of proof. See,
e.g., Microsoft Corp. v.
i4i
L. P.,
564 U.S.
91, 100, n. 4 (2011).
The majority points out that we have
occasionally referred to the “ ‘fact of a prior
conviction.’ ”
Ante, at 13. The majority reads too much
into that reference. All that we have seriously referred to as a
fact is the “
mere fact of conviction.”
Taylor, 495
U. S., at 602 (emphasis added). Establishing that basic fact
is, of course, a prerequisite to application of the categorical
approach at all. It goes to “the validity of a prior judgment of
conviction.”
Apprendi v.
New Jersey,
530 U.S.
466, 496 (2000). But the mere fact of conviction is not at
issue here. Instead, the question here (and the question the
categorical approach asks) is “what [that] conviction
necessarily established.”
Mellouli, 575 U. S.,
at 806. We have referred to
that question as a “legal
question.”
Ibid. And rightly so. Thus, if the majority
applies the categorical approach, it should agree that there is no
factual dispute in this case for any burden of proof to resolve. If
the majority does not apply the categorical 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
eligibility requirements,” §1229a(c)(4)(A), which includes the
requirement that he not have been convicted of a crime involving
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 conviction, there is no role
for the burden of proof to play. Indeed, the Government agreed at
argument that the burden of proof would not apply “if this were
just a categorical approach case.” Tr. of Oral Arg. 53. That this
case implicates the modified categorical approach rather than the
categorical approach does not make a difference. The modified
categorical approach, like the categorical approach, provides a
conclusive answer without any resort to burdens of proof. It does
so not by “treating [a] (divisible) statute as if it states a
single offense,”
ante, at 11, n. 4, but by permitting
courts to look at only certain conclusive records of a conviction
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
conviction 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 involving moral turpitude. Because of the
categorical approach, there is nothing left for a party to
prove.
In my view, the “textual clues” and “statutory
signals” relied on by the majority further demonstrate that burdens
of proof are not relevant to the question at hand. See
ante,
at 7, 11, n. 5. As the majority points out, the INA sets forth a
list of particular materials that, the INA says, “shall constitute
proof of a criminal conviction.” §1229a(c)(3)(B). They include an
“official record of judgment and conviction,” an “official record
of plea, verdict, and sentence,” a “docket entry from court records
that indicates the existence of the conviction,” court minutes of a
“transcript . . . in which the court takes notice of the
existence of the conviction,” an official “abstract of a record of
conviction” that indicates “the charge or section of law violated”
(among certain other things), and any other “document or record
attesting to the conviction” prepared or kept by the court or by a
“penal institution.”
Ibid. The majority also notes that the
INA authorizes an immigration judge to make “credibility
determination[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 evidence is broader than what we
have permitted in our modified 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
evidence. But in my view, Mr. Pereida cannot introduce this
evidence because it goes beyond the limited record our precedents
allow. Hence, he must not bear the burden of proof. The majority’s
response is that there is no limitation on the documents an
immigration judge can look at when applying the categorical
approach. That is because, the majority says, the limitation was
adopted in the criminal context out of a concern for Sixth
Amendment rights that is not present in the immigration context.
Ibid. That was not, however, our only, or even primary,
reason for adopting the limitation. Rather, we limited the
documents that a judge can review in order “to implement the object
of the statute and avoid evidentiary disputes.”
Shepard, 544
U. S., at 23, n. 4. To be sure, we were there referencing
ACCA, not the INA. But the statutes share the relevant object
(tying federal penalties to certain convictions, not certain
conduct) signaled by the same statutory text (“conviction”). See
Taylor, 495 U. S., at 600;
Mellouli, 575
U. S., at 806. The “central feature” of this statutory object
is “a focus on the elements, rather than the facts, of a crime.”
Descamps, 570 U. S., at 263. Allowing review of a broad
array of evidence is incompatible with this statutory object, even
if the judge looks at the evidence only to determine the nature of
the offense of which a noncitizen was convicted. See
Shepard, 544 U. S., at 21–23. I see no reason for the
categorical approach to apply differently under the INA than under
ACCA given their shared text and purpose. The “ ‘long
pedigree’ ” of the categorical approach in our immigration law
further counsels against departing from how we have long understood
that approach to work.
Mellouli, 575 U. S., at 805–806.
Al- though this Court first applied the categorical approach in the
criminal context, see
ante, at 7, courts examining the
federal immigration statutes concluded that Congress intended 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 parties. The
Government confirmed several times at oral argument that it had not
argued that a judge should be allowed to look at a broader array of
evidentiary materials because, in its view, that issue was not
implicated since no other documents exist. See Tr. of Oral Arg. 34,
46, 56. 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
practical difficulties and potential unfairness that Congress
intended to avoid by adopting a categorical approach.
First, allowing parties to introduce a
wide range of documentary evidence and testimony to establish the
crime of conviction may undermine the “judicial and administrative
efficiency” that the categorical approach is intended to promote.
Moncrieffe, 569 U. S., at 200. As we have recognized
before, “[a]sking immigration judges in each case to determine the
circumstances underlying a state conviction would burden a system
in which ‘large numbers of cases [are resolved by] immigration
judges and front-line immigration officers, often years after the
convictions.’ ”
Mellouli, 575 U. S., at 806
(alterations in original). The same is true here. In cases where
noncitizens are able to introduce evidence of their crime of
conviction, immigration judges now may have to hear and weigh
testimony from, for example, the prosecutor who charged the
noncitizen or the court reporter who transcribed the now-lost plea
colloquy. Given the vast number of different state misdemeanors,
plea agreements made long ago, cursory state records, and state
prosecutors or other officials who have imperfect memories or who
have long since departed for other places or taken up new
occupations, there is a real risk of adding time and complexity to
immigration proceedings. Such hearings may add strain to “our
Nation’s overburdened immigration courts.”
Moncrieffe, 569
U. S., at 201.
Second, today’s decision may make the
administration of immigration law less fair and less predictable.
One virtue of the categorical approach is that it “enables aliens
‘to anticipate 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
immigration sanctions.’ ”
Mellouli, 575 U. S., at
806 (alterations in original). The majority’s approach, on the
other hand, may “deprive some defendants of the benefits of their
negotiated plea deals.”
Descamps, 570 U. S., at 271. A
noncitizen may agree to plead guilty to a specific offense in a
divisible statute because that offense does not carry adverse
immigration consequences. But in many lower criminal 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 misdemeanor cases are often
unavailable or incomplete”). And even where complete records do
exist, noncitizens, who often 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 Project
et al. as
Amici Curiae 11–19. Thus, under the
majority’s approach, noncitizens may lose the benefit of their plea
agreements unless their testimony persuades the immigration judge
that they pleaded guilty to the lesser offense.
Third, today’s decision risks hinging
noncitizens’ eligibility for relief from removal on the varied
charging practices of state prosecutors. In some cases (perhaps
even this one), state prosecutors and state courts may treat
statutes that list multiple offenses as if they list only one,
whether inadvertently 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 statutory
subsection or factual basis underlying the conviction”). It
sometimes can be challenging to determine whether a fact is an
element or a means (and so whether a statute is divisible or not).
If a prosecutor mistakes a divisible statute for an indivisible
one, she may well not identify which particular offense was the
basis for the charge. Some States, including Nebraska, do not
require a pleading to identify the 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, 265 Neb. 214, 221,
655 N.W.2d 876, 884 (2003) (“[T]his court has made clear that
certain crimes are single crimes that can be proved under different
theories, and that because each 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 reason,
records will be “inconclusive” because the defendant was not, as a
matter of fact, convicted of any particular alternative crime. It
would be unfair for mandatory deportation to result from
inconclusive records in these cases.
The Court dismisses these “policy” concerns on
the ground that Congress has chosen “to conclude that uncertainty
about an alien’s prior conviction should not redound to his
benefit.”
Ante, at 16. But Congress made precisely the
opposite choice by tying ineligibility for relief to a noncitizen’s
“conviction.” That text mandates a categorical approach in which
uncertainty about a conviction redounds to a noncitizen or
defendant’s benefit. The approach is underinclusive by design, and
the majority’s “objection to th[e categorical approach’s]
underinclusive result is little more than an attack on the
categorical approach itself.”
Moncrieffe, 569 U. S., at
205.
Finally, it makes particularly little sense to
disregard this core feature of the categorical approach here. See
id., at 203–204. As already noted, cancellation of removal
is discretionary. Thus, when a conviction is not disqualifying
under the categorical approach, the Government may still deny the
noncitizen relief. If it turns out that an individual with a record
like the one here in fact violated the statute in a reprehensible
manner, that can be accounted for during the discretionary phase of
the proceedings, when the categorical approach does not apply.
* * *
In my view, the Court should follow Congress’
statute. Congress has long provided that immigration courts
applying the INA provision here, like sentencing courts applying
ACCA, must follow the categorical approach. See
Mellouli,
575 U. S., at 805–806. Our cases make clear how that approach
applies in a case like this one. We should follow our earlier
decisions, particularly
Taylor,
Shepard, and
Johnson. And, were we to do so, ineluctably they would lead
us to determine that the statutory offense of which Mr. Pereida was
“convicted” is not “necessarily” a “crime involving moral
turpitude.”
Because the Court comes to a different
conclusion, with respect, I dissent.