Submitted: October 24, 2018
Petition for Review of an Order of the Board of Immigration
ERICKSON, BEAM, and GRASZ, Circuit Judges.
Avelino Pereida, a native and citizen of Mexico, petitions
for review of the decision of the Board of Immigration
Appeals (Board) affirming the Immigration Judge's (IJ)
grant of the Department of Homeland Security's
(DHS's) motion to pretermit Pereida's cancellation of
removal application. Pereida pleaded no contest to a Nebraska
criminal attempt charge (Neb. Rev. Stat. § 28-201(1)(b))
arising from the use of a fraudulent social security card to
obtain employment at National Service Company of Iowa,
operating in rural Crete, Saline County, in violation of
Nebraska Revised Statute § 28-608 (2008). The determinative
issue in this matter is whether Pereida's criminal
attempt conviction qualifies as a crime involving moral
turpitude (CIMT), making him ineligible for cancellation of
removal. The criminal impersonation offense underlying
Pereida's attempt conviction is a divisible statute with
subsections, some of which qualify as CIMTs and one
subsection that may not. Applying the modified categorical
approach, it is not possible to ascertain which subsection
formed the basis for Pereida's conviction. It is
Pereida's burden to establish his eligibility for
cancellation of removal and he thus bears the adverse
consequences of this inconclusive record. Accordingly,
because Pereida cannot establish that he was eligible for
cancellation of removal, we uphold the Board's
determination that he has not shown such eligibility. Thus,
we deny Pereida's petition for review.
is a citizen of Mexico who entered the United States without
authorization or inspection in, according to his application
for cancellation of removal, approximately 1995. He has thus
lived in the United States for an extended period of time
and, according to the immigration record, has been gainfully
employed, paid taxes and with his wife, raised his family
(comprised of their three children) here. On August 3, 2009,
DHS issued a Notice to Appear (NTA) charging Pereida with
removability. Pereida admitted the factual allegations in the
NTA and conceded the charge of removability, but in March
2011 filed an application for Cancellation of Removal and
Adjustment of Status pursuant to 8 U.S.C. § 1229b(b)(1).
In August 2014, DHS filed a Motion to Pretermit Pereida's
application asserting that he had been convicted of a CIMT,
which is a mandatory bar to his requested relief, given
Pereida's no contest plea to a charge of attempted
analyzed the substantive crime of criminal impersonation in
Nebraska underlying Pereida's criminal attempt charge and
held that the statute is divisible; that Pereida was
necessarily convicted under a subsection requiring the
specific intent to defraud, deceive or harm; and thus
Pereida's conviction under this statute constituted a
CIMT. Having found Pereida's attempted criminal
impersonation conviction to be a CIMT, the IJ additionally
held that because the conviction was punishable by a maximum
term of "not more than one year imprisonment," Neb.
Rev. Stat. § 28-106(1), it constituted a conviction
"of an offense under subsection 1182(a)(2) [and]
1227(a)(2)," barring Pereida from the relief requested,
at least according to the IJ's analysis of 8 U.S.C.
§ 1229b(b)(1)(C). The IJ's decision was reviewed by
the Board, which did not go so far in its analysis.
Board agreed that only three subsections under Nebraska
Revised Statute § 28-608 qualified as CIMTs because each
contained as a necessary element the intent to defraud or
deceive, thus making the statute divisible. Under a modified
categorical approach, the Board found no record as to which
particular subsection of the statute Pereida was ultimately
convicted of violating. This is where the Board ended its
analysis. The Board noted that Pereida bore the burden of
proving that his particular conviction did not bar relief. 8
U.S.C. § 1229a(c)(4). Accordingly, the Board found that
Pereida failed to carry his burden of proving that his
conviction was not a CIMT, and that he was thus statutorily
ineligible for cancellation of removal. Pereida petitioned
this court for review of the Board's order, claiming that
his conviction of attempted criminal impersonation does not
fall within the definition of a CIMT. Pereida additionally
claims that even if his Nebraska conviction qualifies as a
CIMT, it falls within the petty offense exception available
under 8 U.S.C. § 1182(a)(2)(A)(ii).
jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(D) to
review "constitutional claims or questions of law raised
upon a petition for review." "We review the
[Board's] factual determinations under a
substantial-evidence standard and its legal conclusions de
novo." Andrade-Zamora v. Lynch, 814 F.3d 945,
948 (8th Cir. 2016). Where, as here, the Board adopted the
reasoning of the IJ, we consider the two decisions together.
Saldana v. Lynch, 820 F.3d 970, 974 (8th Cir. 2016).
eligible for cancellation of removal, Pereida had to meet
four requirements. 8 U.S.C. § 1229b(b)(1). At issue here
is whether, under 8 U.S.C. § 1229b(b)(1)(C),
Pereida's conviction for attempted criminal impersonation
is a CIMT as defined by the Immigration and Nationality Act
(INA) in 8 U.S.C. § 1182(a)(2) or § 1227(a)(2). If
it is, and if no exceptions apply, Pereida is ineligible for
cancellation of removal.
first apply the "categorical approach" to determine
whether Pereida's conviction qualifies as a CIMT by
comparing the elements of that state offense to see if it
fits within the generic definition of a crime involving moral
turpitude. Moncrieffe v. Holder, 569 U.S. 184, 190
(2013). In doing so, we presume that the conviction rested
upon nothing more than the least of the acts criminalized by
the state statute. Gomez-Gutierrez v. Lynch, 811
F.3d 1053, 1058 (8th Cir. 2016) (applying the realistic
probability test in the context of a CIMT analysis).
Deferring to the agency's interpretation of this
ambiguous statutory phrase left undefined by Congress,
"[c]rimes involving moral turpitude have been held to
require conduct 'that is inherently base, vile, or
depraved, and contrary to accepted rules of morality and the
duties owed between persons or to society in
general.'" Guardado-Garcia v. Holder, 615
F.3d 900, 902 (8th Cir. 2010) (quoting Lateef v.
Dep't of Homeland Sec., 592 F.3d 926, 929 (8th Cir.
2010)). "Crimes involving the intent to deceive or
defraud are generally considered to involve moral
turpitude." Id. (quoting Lateef, 592
F.3d at 929).
underlying Nebraska offense of criminal impersonation at
issue, as it ...