A noncitizen seeking cancellation of removal after a conviction under a statute which contains both eligible and ineligible offenses must prove their actual offense was eligible, the U.S. Supreme Court held March 4 in Pereida v. Wilkinson


The Court rejected a purely “categorical approach” for deciding such cases.




The U.S. obtained a lawful order of removal for Clemente Avelino Pereida, a noncitizen.   


The Immigration and Nationality Act (INA) allows noncitizens to seek cancellation of removal, but they must prove they have not been convicted of a crime involving “moral turpitude,” among other factors.


 Pereida had been convicted under a Nebraska statute that contained four subsections, three involving moral turpitude, but one not.  Three subsections dealt with fraud, but one dealt with operating a business without a license, the latter of which would not involve moral turpitude.


Pereida, in seeking cancellation, declined to identify the precise offense or subsection he was convicted under.  Instead, he argued that because the statute contained both eligible and ineligible offenses, he was eligible for cancellation.  In other words, he argued for a “categorical approach” to determine if a prior conviction was ineligible.  


The immigration judge, Board of Immigration Appeals, and Eighth Circuit all found Perieda to be ineligible for cancellation.


The Supreme Court granted cert. to resolve a circuit split.




The Court, in a 5-3 opinion by Justice Gorsuch, affirmed.  


The INA states that “[a]n alien applying for relief or protection from removal has the burden of proof to establish” that he “satisfies the applicable eligibility requirements,” the Court said.


Under a categorical approach, “a court does not consider the facts of an individual’s crime as he actually committed it,” but instead “asks only whether an individual’s crime of conviction necessarily – or categorically – triggers a particular consequence under federal law,” the Court explained.


But the categorical approach prefers “hypothetical facts over real ones,” the Court said.


In other contexts, the Court has held that where a statute is “divisible” because it contains both eligible and ineligible offenses, judges must use a “modified” categorical approach.  This involves conducting a limited review of the record of conviction to determine the actual offense, the Court said.


Since the Nebraska statute is “divisible,” Pereida had the burden to prove as a factual matter that his particular conviction was eligible.  


“Pereida failed to carry that burden,” the Court concluded. “Before the immigration judge, he refused to produce any evidence about his crime of conviction even after the government introduced evidence suggesting he was convicted” for ineligible fraud offenses.


Justice Breyer, joined by Justices Sotomayor and Kagan, dissented.


Justice Barrett did not participate.