Clemente Avelino Pereida v. William P. Barr, 916 F.3d 1128

Pereida, a Mexican national who entered the U.S. without inspection circa 1995, applied for cancellation of removal under 8 U.S.C. § 1229b(b)(1).
He pleaded no contest in Nebraska to attempted criminal impersonation based on using a fraudulent Social Security card to obtain employment (Neb. Rev. Stat. § 28-608 (2008)).
DHS moved to pretermit his cancellation application, arguing the conviction was a crime involving moral turpitude (CIMT), which statutorily bars cancellation of removal.
Nebraska § 28-608 was divisible: several subsections required intent to defraud/deceive (CIMTs), but subsection (c) could criminalize conduct without such intent.
The record did not indicate which subsection Pereida was convicted under; under the modified categorical approach the court could not determine the particular statutory subsection.
Pereida bore the burden to prove eligibility for cancellation; because the record was inconclusive, the Board and the court denied his petition for review.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Pereida's attempted criminal impersonation conviction is a CIMT that bars cancellation of removal	Pereida argued his conviction is not a CIMT (or alternatively fits within the petty-offense exception)	DHS argued the conviction was for a CIMT because subsections of the statute require intent to defraud/deceive	The statute is divisible; record is inconclusive which subsection Pereida violated; because Pereida bore the burden to prove non-disqualifying conviction and failed to do so, relief was denied
Whether the petty-offense exception saves Pereida's eligibility	Pereida contended the petty-offense exception applies	DHS contended ineligibility due to CIMT conviction (and court noted cross-reference limits)	Court declined to reach substantive petty-offense analysis because inability to identify the subsection foreclosed the inquiry; denial affirmed

Moncrieffe v. Holder, 569 U.S. 184 (CIMT categorical-approach framework)
Mathis v. United States, 136 S. Ct. 2243 (modified categorical approach; divisible statutes)
Andrade-Zamora v. Lynch, 814 F.3d 945 (8th Cir.) (alien bears burden to prove eligibility for cancellation of removal)
Gomez-Gutierrez v. Lynch, 811 F.3d 1053 (8th Cir.) (presumption that conviction rests on least culpable conduct)
Guardado-Garcia v. Holder, 615 F.3d 900 (8th Cir.) (intent to deceive/defraud generally indicates moral turpitude)
Villatoro v. Holder, 760 F.3d 872 (8th Cir.) (categorical approach ends if statute either always includes or excludes CIMTs)