Pereida v. Wilkinson

Specific nonpermanent residents bear the burn to show they do not have a conviction of a disqualifying offense when seeking cancellation of a lawful removal order under the Immigration and Nationality Act (INA). The alien fails to carry that burden if his conviction falls under the statute listing multiple offenses, including those that are disqualifying, and the record shows ambiguity on which crime was the basis of the conviction.

Petitioner entered the United States unlawfully and the government secured a lawful order for his removal. In removal proceedings, Petitioner sought to establish his eligibility for discretionary relief under 8 U.S.C. §§ 1229a(c)(4), 1229b(b)(1). The Board of Immigration Appeals and the Eighth Circuit concluded that Petitioner did not meet the burden of proving his eligibility for relief, and the Supreme Court agreed. The Court explained that the INA specifically requires those individuals seeking relief from removal orders to establish all aspects of their own eligibility which includes “proving they do not stand convicted of a disqualifying criminal offense,” like crimes involving moral turpitude. §1229b(b)(1)(C). Petitioner was convicted under state law and thus, was required to show that his crime did not involve “moral turpitude.” The Court reasoned that, because the state statute is divisible and sets forth only some crimes that are crimes of moral turpitude, Petitioner bore the burden in proving that he was convicted under certain subsections of the state statute rather than others. Because Petitioner failed to show that he was not convicted of a crime involving “moral turpitude,” the Court concluded he was ineligible for cancellation of removal. Affirmed.