Advisory: Pereida v. Wilkinson and California Offenses

In Pereida v. Wilkinson, 141 S.Ct. 754 (March 4, 2021), the Supreme Court issued another opinion on the categorical approach, which is the analysis authorities use to decide whether a criminal conviction triggers removal grounds. Pereida focuses on the “modified” categorical approach, which is how courts approach a conviction under a statute that sets out multiple, separate, offenses (a “divisible” statute). Pereida overruled Marinelarena v. Barr, 930 F.3d 1039 (9th Cir. 2019) (en banc).

Pereida is a damaging opinion that will affect defense strategies in criminal and immigration proceedings, especially relating to drug offenses. This advisory discusses how Pereida does and does not change the categorical approach, and how Pereida may affect certain California offenses. The bottom line is that an “inconclusive” record of conviction is no longer helpful to an immigrant who has to apply for relief, and it might not be an entirely secure defense for a permanent resident who needs to avoid becoming deportable.