Andrade-Zamora v. Lynch, No. 15-2004 (8th Cir. 2016)
Annotate this CasePetitioner, a native of Mexico, seeks review of the BIA's affirmance of the IJ's pretermitting his application for removal because petitioner committed theft in the fourth degree, a crime involving moral turpitude. The court concluded that, while the government bears the burden to prove the alien is deportable or removable, it is the alien's burden under the Immigration and Nationality Act (INA), 8 U.S.C. 1229a(c)(4)(A)(i), to prove he is eligible for cancellation of removal; petitioner did not meet his burden to prove that the Iowa state court vacated his conviction for a substantive or procedural reason, and not for immigration purposes; and the IJ properly found his conviction for theft in the fourth degree qualified as a crime involving moral turpitude despite its vacatur. The court held that the BIA's interpretation that the cross-reference in 8 U.S.C. 1229b(b)(1)(C) to an offense under 8 U.S.C. 1227(a)(2) should be read only as a cross-reference to the list of offenses in the statute, not as a cross-reference to the statute as a whole. Therefore, the IJ did not err when it pretermitted petitioner's application for cancellation of removal on the grounds that he committed an offense under section 1227(a)(2), even though he was never admitted to the United States. Accordingly, the court denied the petition for review.
Court Description: Bye,Author, with Wollman and Loken, Circuit Judges] Petition for Review - Immigration. An alien bears the burden of proving that he is eligible for cancellation and that includes the burden of proving that his state court conviction was vacated for a substantive or procedural reason and not for immigration purposes; here the order does not state the reason the state court vacated the conviction and the order alone does not prove that the conviction was vacated for substantive or procedural reasons; further, the timing and effect of the order suggest the conviction was vacated for immigration purposes as it came two weeks after the government moved to remove petitioner based on the conviction; as petitioner presented no evidence on the reason the conviction was vacated, he failed to meet his burden and the IJ properly found the conviction for theft in the fourth degree qualified as a crime of moral turpitude; the court would defer to the BIA's interpretation of 8 U.S.C. Sec. 1229(b)(1)(C) that the section incorporates only the list of offenses found in 8 U.S.C. Sec. 1227(a)(2)without incorporating all of the immigration characteristics of the section; as a result, the IJ did not err in pretermitting petitioner's application for cancellation of removal on the grounds he committed an offense under Sec. 1227(a)(2), even though he was never admitted to the U.S.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.