In Pereida, the Supreme Court Alters the Modified Categorical Approach
See Pereida v. Wilkinson, 141 S.Ct 754 (March 4, 2021), overruling Marinelarena v. Barr, 930 F.3d 1039 (9th Cir. 2019) (en banc). See also ILRC, Pereida and California Offenses at www.ilrc.org/crimes (forthcoming).
In Pereida v. Wilkinson, the Supreme Court addressed how certain criminal convictions are evaluated in immigration proceedings, under the “modified categorical approach.” The majority opinion misconstrued and rewrote sections of the modified categorical approach, and characterized it as a factual rather than legal question. See the discussion of the debate in the dissent as well as advisories such as IDP, NIPNLG, Practice Alert: Pereida v. Wilkinson (March 10, 2021) at https://nipnlg.org/practice.html and Kahn, I’ll Never Be Your Beast of Burden (Unless You’re a Noncitizen): Pereida v. Wilkinson (March 7, 2021) at https://topoftheninth.com/
In practice, Pereida affects what will happen in removal proceedings once an offense is found to be truly divisible, and the adjudicator undertakes the modified categorical approach. Mr. Pereida was convicted under a divisible Nebraska statute that set out four separate offenses. At least one of these offenses was a crime involving moral turpitude (CIMT) that would be a bar to his application for non-LPR cancellation, and at least one was not a CIMT and would not be a bar. The few documents that Mr. Pereida submitted from his “reviewable record of conviction” did not identify the offense of which he was convicted; they just said that he was convicted under the statute. In other words, it was an “inconclusive” record of conviction.
Some circuits, including the Ninth Circuit in Marinelarena v. Barr, supra, had held that because the categorical approach is a legal, not factual, inquiry and because it requires certainty, an inconclusive record of conviction under a divisible statute is sufficient for the immigrant to prove eligibility for relief. They would have found Mr. Pereida eligible for relief. Other circuits disagreed, and the issue went to the Supreme Court.
In Pereida the Supreme Court majority held that the modified categorical approach is a factual, not legal, inquiry. It held that an applicant for immigration relief convicted under a divisible statute has the burden of producing evidence to prove that they were not convicted of an offense that is a bar to the relief. If the applicant’s evidence is inconclusive, their conviction is deemed a bar and they are ineligible for the relief. Because Mr. Pereida’s record of conviction was inconclusive, his conviction was a bar to non-LPR cancellation. Pereida overruled cases such as Marinelarena v. Barr.
The majority also made a surprising statement (which arguably is dicta) about evidence. It stated that under the modified categorical approach, an applicant for immigration relief is not restricted to submitting documents from “reviewable record of conviction,” as prescribed by Shepard v. United States, 544 U.S. 13, 26 (2005), to prove their offense of conviction. This is because Shepard does not apply in immigration proceedings; it only applies in criminal proceedings. Therefore an applicant for immigration relief can use a wide range of evidence, perhaps including testimony, to meet their burden of proof.
The majority’s statement directly contradicts extensive and consistent federal precedent that has applied Shepard and the modified categorical approach equally in immigration and federal criminal proceedings. It also was surprising because neither party in Pereida had raised or briefed this issue. But because the majority of the Supreme Court signed off on it, there is a real risk that federal courts will withdraw from their precedent and allow the wider range of evidence in the modified categorical approach in immigration proceedings. This expanded evidence rule may help some applicants for relief to prove that their conviction is not a bar. The problem is that ICE will assert that it also can use this evidentiary standard to prove that a permanent resident convicted under a divisible statute is deportable, despite the fact that the person has an inconclusive record of conviction. See further discussion of the evidentiary rule in Part II.B, below.
It is important to understand what Pereida does and does not change about the categorical approach.
- Pereida does not change the analysis of a criminal offense: whether a particular statute is a categorical match to some removal ground, or is overbroad, or is divisible.
- Only after a statute is found to be truly divisible (in an inquiry that is not affected by Pereida) do we go to the “modified categorical approach” where Pereida comes into play. Then:
- An applicant for relief has the burden of producing evidence to prove that their conviction is not a bar. If evidence is inconclusive, the applicant loses. The court stated that if evidence is unavailable because the court destroyed the conviction record, the applicant loses.
- In immigration proceedings, an applicant can use a wide range of evidence to prove the offense of conviction; they are not limited to the “reviewable record of conviction.” ICE will assert that it also can use a wide range of evidence to meet its burden of proving that a permanent resident convicted under a divisible statute is deportable.