An incomplete subsection entry is a reason to reconstruct the offense of conviction, not to assume the ambiguity helps or hurts an immigration case. The first question is whether the statute in force when you pleaded listed separate offenses with different elements. The next is what the permissible record establishes about the offense you actually admitted or were convicted of. The answer can also depend on who must prove what in the particular immigration proceeding. (Pereida v. Wilkinson)
Find out whether the record is incomplete or wrong
Compare the original complaint or information with any amended charge, signed plea agreement, plea-hearing minutes or transcript, and final judgment. Note the case number, date, statute and any subsection on each document. A complaint may charge one offense while a later plea resolves a different one. A police report describes allegations; it does not, by itself, identify the legal offense of conviction. If the judgment affirmatively lists the wrong statute, that is a source-record correction issue. If the conviction documents genuinely leave a choice between statutory offenses unclear, counsel must analyze that ambiguity. (Pereida v. Wilkinson)
The precise statutory wording on the plea date matters. One section number may contain different offenses, or its elements may have changed over time. Immigration counsel should first decide whether the alternatives are legally separate offenses and whether the relevant federal rule looks to the offense of conviction. Only then can counsel decide what the surviving plea and court records prove. A bare statute number does not establish that every subsection has the same immigration consequence. (Pereida v. Wilkinson; 8 U.S.C. § 1101(a)(48)(A))
Why the burden in the immigration case matters
Pereida v. Wilkinson concerned a person seeking nonpermanent-resident cancellation of removal. He had the burden to prove eligibility, and the parties agreed that the Nebraska statute of conviction contained separate offenses, some disqualifying and some not. Because the record did not establish which one was his offense, the Supreme Court held that he had not carried his burden. The decision does not say every missing subsection defeats every immigration application or that the government can always rely on an ambiguous record. Counsel must identify the particular immigration issue, whether the statute is divisible, and the applicable burden before drawing a conclusion. (Pereida v. Wilkinson)
Request the certified judgment and surviving plea materials from the court where the case was filed. If a transcript is unavailable, keep the court’s response and look for signed forms, minutes, and prior counsel’s file. Preserve the original copies and note where each came from. Do not try to fill a blank subsection by guessing from an arrest narrative. The Law Offices of David S. Chesley’s immigration overview discusses the broader intersection of criminal and immigration cases; call (800) 755-5174 for a review of an actual plea record.