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															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
secured a lawful order directing his removal. The only remaining
question is whether Mr. Pereida can prove his eligibility for
discretionary relief.

															Under the Immigration and Nationality Act (INA),
individuals 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 admits 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 argument. 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.

															I

															The INA governs how persons are admitted to,
and removed 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 person faced with a lawful removal order may still ask
the Attorney General to “cancel” that order. §§1229a(c)(4),
1229b(b)(1). To be eligible for this form of relief, a nonpermanent
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 character; (3) he has not been
convicted of certain criminal offenses; 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 orders may be
cancelled each year. §1229b(e).

															This narrow pathway to relief proved especially
challenging here. The government brought removal proceedings
against Mr. Pereida, alleging that he had entered the country
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 eligibility 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 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 further 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 pecuniary
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
authorization 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 conviction loomed large when his immigration proceedings
resumed. Before the immigration judge, everyone accepted that Mr.
Pereida’s eligibility for discretionary relief depended on whether
he could show he had not been convicted of certain crimes,
including ones “involving moral turpitude.” 8 U. S. C.
§§1182(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 involving “fraud [as] an ingredient”
qualifies as a crime involving “moral turpitude.” Jordan v. De George , 341 U.S.
223 , 227 (1951).

															The parties’ common ground left Mr. Pereida with
an uphill climb. As the immigration judge read the Nebraska
statute, subsections (a), (b), and (d) each stated a crime
involving fraud, and thus each constituted a disqualifying offense
of moral turpitude. That left only subsection (c)’s prohibition
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 committed. The government presented a
copy of the criminal complaint against Mr. Pereida showing that
Nebraska had charged him with using a fraudulent social security
card to obtain employment. Meanwhile, Mr. Pereida declined to offer
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
unsuccessful. Both the Board of Immigration Appeals (BIA) and the
Eighth Circuit agreed with the immigration judge that Nebraska’s
statute contains different subsections describing different crimes. Pereida v. Barr , 916 F.3d 1128, 1131, 1133 (2019).
They agreed, too, that subsections (a), (b), and (d) set forth
crimes involving moral turpitude, while subsection (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 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 nothing in the
record definitively indicated which statutory subsection 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 turpitude. Because Mr. Pereida had
not carried that burden, he was ineligible for discretionary relief
all the same.

															It is this judgment Mr. Pereida asks us to
reverse. In his view, Congress meant for any ambiguity about an
alien’s prior convictions to work against the government, not the
alien. The circuits have disagreed on this question, so we granted
certiorari to resolve the conflict. 589 U. S. ___ (2019).

															II

															A

															Like any other, Mr. Pereida’s claims about
Congress’s meaning or purpose must be measured against the language
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 establish” that he “satisfies
the applicable eligibility requirements” and that he “merits a
favorable exercise of discretion.” 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 moral turpitude would appear enough to defeat his
application 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 presence 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 requirement at issue
here—whether he was convicted of a disqualifying 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 treatment. 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 character.” Cf. 8
U. S. C. §1101(f )(3). And if that’s true, it’s hard
to see how the same ambiguity could help an alien when it
comes to the closely related eligibility requirement at issue
before us.

															What the statute’s text indicates, its context
confirms. Consider three nearby provisions. First, the INA
specifies particular forms of evidence that “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 under this chapter” regardless
whether the proceedings happen 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 convictions 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
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 government 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, reflects its choice that these different
processes warrant different treatment.

															Finally, the INA often requires an alien
applying for admission to show “clearly and beyond doubt” that he
is “entitled 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 admission to this country, yet lift it from an alien who
has entered the country illegally and is petitioning for relief
from a lawful 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 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 particular
consequence under federal law. The categorical approach 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 , 495
U.S. 575 , 600 (1990); Leocal v. Ashcroft , 543 U.S.
1 , 7 (2004); United States v. Davis , 588
U. S. ___, ___–___ (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
criminalizes 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 approach’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 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 categorical approach thus implicates
two inquiries—one factual (what was Mr. Pereida’s crime of
conviction?), the other hypothetical (could someone commit that
crime of conviction 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 convicted of
crime x. Not infrequently, however, a single criminal 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, “review[ing] the record materials
to discover which of the enumerated alternatives played a part in
the defendant’s prior conviction.” Mathis v . United
States , 579 U. S. ___, ___, ___ (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 agreement and colloquy) to determine what
crime, with what elements, a defendant was convicted of.” Id ., at ___ (slip op., at 4).

															These nuances expose the difficulty with Mr.
Pereida’s argument. Both he and the government accept that
Nebraska’s attempted criminal impersonation statute is divisible
because it states no fewer than four separate offenses 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 proving 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 possible 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 below
that he was convicted under subsection (a) or (c) rather than under
(b) or (d).

															Mr. Pereida failed to carry that burden. Before
the immigration judge, he refused to produce any evidence about his
crime of conviction even after the government introduced 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
ambiguity remains about the nature of Mr. Pereida’s conviction, and
whatever the reason for it, one thing remains stubbornly evident:
He has not carried his burden of showing 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 consequence, courts applying the categorical approach often
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
actual, 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 certain
forms of evidence “shall” constitute “proof ” of a criminal
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 ]

															The INA adopts this approach for understandable
reasons too. Not only is it impossible to discern an individual’s
offense of conviction without consulting at least some documentary
or testimonial evidence. It’s easy to imagine significant factual
disputes that make these statutory instructions 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 complaint the government introduced
involved a different Clemente Avelino Pereida.
Alternatively, what if Nebraska’s complaint charged Mr. Pereida
with a violation of subsection (c) but the plea colloquy mentioned
only subsection (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 statutory
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 committing is to ask a
question of fact. See, e.g. , Taylor , 495 U. S.,
at 600 (courts look “to the fact that the defendant had been
convicted of crimes falling within certain categories”). We have
described the modified categorical approach as requiring 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 “discover” the defendant’s
crime of conviction. Descamps v. United States , 570 U.S.
254 , 263 (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 criminal case. Mathis , 579 U. S., at ___
(slip op., at 18) (citing Shepard v. United States , 544 U.S.
13 , 21 (2005)). And we have remarked that “the fact of a prior
conviction” supplies an unusual and “arguable” exception to the
Sixth Amendment 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 , 530 U.S.
466 , 489, 490 (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 associated with
failing to do so.[ 6 ]

															The authorities Mr. Pereida invokes do not teach
differently. He directs our attention especially to Moncrieffe v. Holder , 569 U.S.
184 (2013), Carachuri-Rosendo v. Holder , 560 U.S.
563 (2010), and Johnson v. United States , 559 U.S.
133 (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 triggered 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 statute an alien
committed, he might succeed by showing that 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 statute 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, allocated 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 difficulties.”
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 suggests 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 preserve
relevant state court records about his crime. Represented by
counsel in both proceedings, he had professional help with these
tasks too. We know that relevant records were created, as well,
because the government submitted documents outlining the charges
brought against him. Despite all this, Mr. Pereida simply declined
to insist on clarity 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 government 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 concealing evidence they possess about their own
convictions. It is hardly this Court’s place to pick and choose
among competing 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 policymaking.
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-keeping 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
records. 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 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 , 523 U.S.
224 (1998)). But Sixth Amendment 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 Circuit
correctly held that Mr. Pereida failed to carry this burden. Its
judgment is

															Affirmed.

															Justice Barrett took no part in the
consideration or decision of this case. Notes 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
approach” discussed in the next section. Post, at 1 (opinion
of Breyer, J.). 2 Nothing requires Congress
to employ the categorical approach. Instead of focusing our
attention on the question whether an offense of conviction 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 , 557 U.S.
29 , 41 (2009). 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 prerequisite to application of the
categorical approach. Post , at 11. The second view comes
closer to the mark. 4 The dissent makes the
same mistake. At first, it acknowledges that courts must look to
factual evidence to determine which of several offenses 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 offense. 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 independent 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
attempts to benefit from that uncertainty. But that proposition is foreclosed 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 determination[s]” based on
an alien’s proof, §1229a(c)(4)(C); it says the immigration judge
must determine whether “testimony is credible, is persuasive, and
refers to specific facts sufficient to [discharge] the applicant’s
burden of proof,” §1229a(c)(4)(B); and the law requires the alien
to comply with regulations requiring him to “submit information or
documentation” supporting 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 Adjustment 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 exists when it comes to evidence concerning
prior convictions. 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 determined 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
determined by the verdict and judgment, extrinsic evidence is
admissible to 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 analogy
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, Williston 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
conviction and its ambiguous meaning involve at least some
questions of fact requiring resort to proof. 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. 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.

Summary: The Supreme Court ruled that an individual facing a lawful removal order must prove their eligibility for relief, including demonstrating they have not been convicted of a "crime involving moral turpitude." In this case, Clemente Avelino Pereida, an undocumented immigrant, could not prove his eligibility for relief as he failed to identify his prior conviction, leaving uncertainty about whether it involved moral turpitude. The Court's decision upholds the strict requirements for individuals seeking relief from removal orders under the Immigration and Nationality Act (INA).