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The Immigration and Nationality Act states that an alien applying for relief or protection from removal has the burden of proof to establish that he satisfies the applicable eligibility requirements and that he merits a favorable exercise of discretion. 8 U.S.C.S. § 1229a(c)(4)(A). To carry that burden, a nonpermanent resident alien must prove four things, including that he has not been convicted of certain disqualifying offenses, like crimes involving moral turpitude. 8 U.S.C.S. § 1229b(b)(1)(C).
Immigration officials initiated removal proceedings against Clemente Avelino Pereida for entering and remaining in the country unlawfully, a charge Mr. Pereida did not contest. Mr. Pereida sought instead to establish his eligibility for cancellation of removal, a discretionary form of relief under the Immigration and Nationality Act (INA). 8 U. S. C. §§1229a(c)(4), 1229b(b)(1). Eligibility requires certain nonpermanent residents to prove, among other things, that they have not been convicted of specified criminal offenses. §1229b(b)(1)(C). While his proceedings were pending, Mr. Pereida was convicted of a crime under Nebraska state law. Analyzing whether Mr. Pereida's conviction constituted a “crime involving moral turpitude” that would bar his eligibility for cancellation of removal, §§1182(a)(2)(A)(i)(I), 1227(a)(2)(A)(i), the immigration judge found that the Nebraska statute stated several separate crimes, some of which involved moral turpitude and one--carrying on a business without a required license--which did not. Because Nebraska had charged Mr. Pereida with using a fraudulent social security card to obtain employment, the immigration judge concluded that Mr. Pereida's conviction was likely not for the crime of operating an unlicensed business, and thus the conviction likely constituted a crime involving moral turpitude. The Board of Immigration Appeals and the Eighth Circuit concluded that the record did not establish which crime Mr. Pereida stood convicted of violating. But because Mr. Pereida bore the burden of proving his eligibility for cancellation of removal, the ambiguity in the record meant he had not carried that burden and he was thus ineligible for discretionary relief.
Did INA (in provisions such as 8 U.S.C.S. §§1229a and 1229b) require individual seeking relief from lawful removal order to prove all aspects of eligibility, including proving that individual did not stand convicted of disqualifying criminal offense?
The court held that Mr. Pereida was properly found ineligible for cancellation of removal under 8 U.S.C.S. §§ 1229a(c)(4) and 1229b(b)(1) because he failed to prove that his conviction under former Neb. Rev. Stat. § 28-608 for attempted criminal impersonation was not a crime of moral turpitude. Mr. Pereida had the burden of proving as a factual matter that his conviction was under a subsection of § 28-608 that did not involve moral turpitude, and he refused to produce any evidence about his crime of conviction before the immigration judge.