Pereida v. Barr, No. 17-3377 (8th Cir. 2019)
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The Eighth Circuit denied a petition for review of the BIA's decision affirming the IJ's grant of DHS's motion to pretermit petitioner's cancellation of removal application. At issue was whether petitioner's Nebraska criminal attempt conviction qualified as a crime involving moral turpitude. Petitioner's plea arose from his use of a fraudulent social security card to obtain employment.
The court held that the criminal impersonation statute underlying petitioner's attempt conviction was a divisible statute. The court applied the modified categorical approach, but was unable to determine which subsection under which petitioner was convicted. The court explained that petitioner had the burden of establishing his eligibility for cancellation of removal, and because he failed to meet his burden, the court upheld the Board's determination that he has not shown such eligibility.
Court Description: Beam, Author, with Erickson and Grasz, Circuit Judges] Petition for Review - Immigration. The issue in the case is whether petitioner's criminal attempt conviction qualifies as a crime involving moral turpitude; the criminal impersonation statute underlying petitioner's attempt conviction is a divisible statute but it is not possible, applying the modified categorical approach to this record, to determine which subsection petitioner was convicted under; as it is petitioner's burden to show that he is eligible for cancellation of removal, he bears the adverse consequences of a inconclusive record; because he cannot establish that he was eligible for cancellation of removal, the BIA's determination that he was not is affirmed.
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