PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JAD GEORGE SALEM,
Petitioner,
v.
No. 10-1078
ERIC H. HOLDER, JR., Attorney
General,
Respondent.
On Petition for Review of an Order of
the Board of Immigration Appeals.
Argued: March 23, 2011
Decided: May 24, 2011
Before TRAXLER, Chief Judge, and KING and DIAZ,
Circuit Judges.
Affirmed by published opinion. Judge Diaz wrote the opinion,
in which Chief Judge Traxler and Judge King joined.
COUNSEL
ARGUED: Simon Yehuda Sandoval-Moshenberg, LICHT-
MAN & ELLIOT, PC, Washington, D.C., for Petitioner. Dan-
iel I. Smulow, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent. ON BRIEF:
Thomas A. Elliot, Fabienne Chatain, Thomas H. Tousley,
2 SALEM v. HOLDER
ELLIOT & MAYOCK, Washington, D.C., for Petitioner.
Tony West, Assistant Attorney General, Civil Division, Mark
C. Walters, Senior Litigation Counsel, Office of Immigration
Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
OPINION
DIAZ, Circuit Judge:
This appeal arises from entry of an order of removal under
section 237(a)(2)(A)(ii) of the Immigration and Nationality
Act ("INA"). The Board of Immigration Appeals ("BIA")
found petitioner removable and ineligible for cancellation of
removal. Petitioner concedes removability but contests the eli-
gibility ruling. Because petitioner has not satisfied his statu-
torily prescribed burden of demonstrating eligibility, we
affirm.
I.
A.
Petitioner Jad George Salem is a lawful permanent resident
of the United States. Leaving territory then belonging to Jor-
dan, Salem legally entered this country in 1966. The land
from which he emigrated is now controlled by Israel and the
Palestinian Authority, and Salem asserts that he is stateless as
a result of this transfer of sovereignty.
Salem has amassed a substantial criminal record while in
the United States. Central to this appeal is Salem’s 2007 fel-
ony conviction for petit larceny (third subsequent) under Va.
Code Ann. § 18.2-96.1 Following entry of a guilty plea pursu-
1
The statute provides that "[a]ny person who (1) Commits larceny from
the person of another of money or other thing of value of less than $5, or
(2) Commits simple larceny not from the person of another of goods and
chattels of the value of less than $200 . . . shall be deemed guilty of petit
larceny." Va. Code Ann. § 18.2-96.
SALEM v. HOLDER 3
ant to North Carolina v. Alford, 400 U.S. 25 (1970)2, Salem’s
sentence was enhanced in accordance with Va. Code Ann.
§ 18.2-104, which punishes a third or subsequent larceny
offense as a felony.
B.
On January 3, 2008, the U.S. Department of Homeland
Security filed a Notice to Appear, initiating removal proceed-
ings against Salem. The government alleged that Salem was
removable under two separate statutory provisions: 8 U.S.C.
§ 1227(a)(2)(A)(ii), for having been convicted of two or more
crimes involving moral turpitude; and 8 U.S.C.
§ 1227(a)(2)(A)(iii), for having been convicted of an aggra-
vated felony under 8 U.S.C. § 1101(a)(43)(G), specifically "a
theft offense (including receipt of stolen property) or burglary
offense for which the term of imprisonment [is] at least one
year."
At a hearing before the immigration judge ("IJ"), Salem
conceded that he was removable for having been convicted of
two or more crimes involving moral turpitude. However, he
challenged the government’s contention that an aggravated-
felony conviction justified his removal, and the IJ agreed.
The IJ concluded that the Virginia larceny statute under
which Salem was convicted was divisible, in that it criminal-
ized both wrongful and fraudulent takings of property, with
the latter offense not constituting an "aggravated felony"
under the INA. The IJ looked to our decision in Soliman v.
Gonzales, 419 F.3d 276 (4th Cir. 2005), to support this deter-
mination. There, we held that "theft" for purposes of the INA
does not include fraud, because fraud lacks the "without con-
sent" element of the taking that is essential to a finding of
2
The prosecutor’s proffer of the facts in support of the plea reflected
that Salem pulled into a gas station, pumped $23.01 worth of gasoline into
his car, and then drove away without paying for it.
4 SALEM v. HOLDER
theft. Id. at 282–83. Drawing on this holding and looking to
the divisible nature of the statute, the IJ reasoned that produc-
tion of some evidence was necessary to ascertain whether
Salem had been convicted of theft or merely fraud. According
to the IJ, the government’s proffer of the record of conviction
"establish[ed] the bare fact of conviction" but failed to reveal
whether the conviction was for fraud or theft. J.A. 20. As a
result, the IJ determined that the government had failed to
meet its burden of demonstrating by clear and convincing evi-
dence that Salem had been convicted of an aggravated felony.
Although Salem conceded removability for having been
convicted of two or more crimes involving moral turpitude, he
sought relief in the form of cancellation of removal. The IJ
denied relief, ruling that Salem had failed to carry his burden
of showing by a preponderance of the evidence that he had
not been convicted of an aggravated felony.
Salem appealed the IJ’s ineligibility ruling to the BIA,
which affirmed. Like the IJ, the BIA determined that Salem
had not satisfied his burden of showing that he was eligible
for cancellation of removal. Salem presented no evidence to
establish that his larceny conviction was for conduct falling
outside the scope of the INA’s definition of an "aggravated
felony." As the BIA concluded, "any lingering uncertainty
that remains after consideration of the conviction record nec-
essarily inures to the detriment of the party who bears the bur-
den of proof." J.A. 7. Salem now appeals the BIA’s decision.3
II.
The INA employs a burden-shifting scheme in removal
proceedings. The government must establish removability in
the first instance. 8 U.S.C. § 1229a(c)(3)(A). It sustains its
3
We have jurisdiction to hear appeals from BIA decisions that, as here,
present "constitutional claims or questions of law." See 8 U.S.C.
§ 1252(a)(2)(D).
SALEM v. HOLDER 5
burden by presenting "clear and convincing evidence that, in
the case of an alien who has been admitted to the United
States, the alien is deportable."4 Id.
But a removability finding does not end the matter. The
INA offers noncitizens several forms of relief to resist actual
removal, including cancellation of removal. A noncitizen is
eligible for cancellation of removal if he "(1) has been an
alien lawfully admitted for permanent residence for not less
than 5 years, (2) has resided in the United States continuously
for 7 years after having been admitted in any status, and (3)
has not been convicted of any aggravated felony." Id.
§ 1229b(a) (emphasis added). Even if a noncitizen demon-
strates eligibility, the Attorney General retains discretion to
deny relief. Id.
Important for purposes of this appeal, at the relief stage the
noncitizen bears the burden of establishing eligibility. 8
C.F.R. § 1240.8(d). Thus "[i]f the evidence indicates that one
or more of the grounds for mandatory denial of the applica-
tion for relief may apply, the alien shall have the burden of
proving by a preponderance of the evidence that such grounds
do not apply." Id.
Congress in the REAL ID Act of 2005 affirmed the vitality
of this burden-shifting framework. Pub. L. No. 109-13, 119
Stat. 231. In particular, it sought to underscore that the noncit-
izen bears the burden at the relief stage. H.R. Rep. 109-72, at
294 (2005) (Conf. Rep.). Congress appended provisions to the
INA to accomplish this objective. Of great relevance here, a
new statutory section provided that "[a]n alien applying for
relief or protection from removal has the burden of proof to
establish that the alien [ ] satisfies the applicable eligibility
requirements." 8 U.S.C. § 1229a(c)(4)(A).
4
The government met its burden in this case when Salem acknowledged
before the IJ that he was removable based on having been convicted of
two or more crimes involving moral turpitude.
6 SALEM v. HOLDER
III.
We review legal questions de novo. Mbea v. Gonzales, 482
F.3d 276, 279 (4th Cir. 2007). Although we ordinarily accord
deference to the BIA’s interpretation of INA provisions, such
deference is unwarranted where, as here, the text is unambig-
uous. See INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999).
In this case, Salem’s 2007 Virginia state record of convic-
tion for petit larceny encompasses the elements of an offense
that may qualify as an aggravated felony. Salem nevertheless
contends that a noncitizen satisfies his burden of proof to
demonstrate that he has not been convicted of an aggravated
felony by presenting an inconclusive, though complete, record
of conviction.
We find, however, that the BIA’s ruling denying Salem’s
request for relief from removal was faithful to the plain mean-
ing of the statutory text governing eligibility for cancellation
of removal. Salem’s arguments to the contrary ignore Con-
gress’s burden-shifting framework. Accordingly, we affirm.
A.
Salem’s arguments suffer from a debilitating flaw: all gloss
over the relevant statutory provisions. Yet we cannot so easily
avoid the pellucid dictates of Congress, and application of its
mandate convinces us that Salem has not carried his burden
of demonstrating eligibility for discretionary relief.
Elementary principles of statutory construction command a
court to enforce the unambiguous terms of a duly enacted stat-
ute. As we recently wrote, our "inquiry [begins and] ends with
the plain language . . . unless the language is ambiguous."
Markovski v. Gonzales, 486 F.3d 108, 110 (4th Cir. 2007).
After concluding that Congress has clearly expressed its will
on the face of a statutory provision, courts must not superim-
pose outside constructs on the clear text. Conn. Nat’l Bank v.
SALEM v. HOLDER 7
Germain, 503 U.S. 249, 253–54 (1992). "[C]ourts must pre-
sume that a legislature says in a statute what it means and
means in a statute what it says there. When the words of a
statute are unambiguous, then, this first canon is also the last:
judicial inquiry is complete." Id. (citations and internal quota-
tions omitted).
Applying these principles to interpretation of the INA’s
relief provisions, the Tenth Circuit has held that presentation
of an inconclusive record of conviction is insufficient to sat-
isfy a noncitizen’s burden of proof to show eligibility for can-
cellation of removal. Garcia v. Holder, 584 F.3d 1288,
1289–90 (10th Cir. 2009). In Garcia, the petitioner had
pleaded guilty to assault and conceded removability. Id. at
1289. The petitioner and the government agreed that the
record of conviction was inconclusive as to whether the peti-
tioner had been convicted of a crime involving moral turpi-
tude, which would bar him from seeking discretionary relief.
Id. The parties disputed, however, which "side [may] claim[ ]
the benefit of the record’s ambiguity." Id.
The court held that, once the government had demonstrated
that the petitioner was removable, the INA shifted the burden
"to him to prove the absence of any impediment to discretion-
ary relief." Id. at 1290. Accepting the petitioner’s argument
that he had sustained his burden by submitting an inconclu-
sive record of conviction would, the Tenth Circuit declared,
"effectively nullif[y] the statutorily prescribed burden of
proof." Id. The court acknowledged that the petitioner was
"not to blame for the ambiguity surrounding his criminal con-
viction," but reasoned that lack of culpability "does not
relieve him of his obligation to prove eligibility for discretion-
ary relief." Id.
Not all circuits have been persuaded by the logic underpin-
ning Garcia. Both the Second and Ninth Circuits have held
that a noncitizen satisfies his burden of proving that he has
not been convicted of an aggravated felony—and thus
8 SALEM v. HOLDER
remains eligible for cancellation of removal—simply by prof-
fering an inconclusive record of conviction. Martinez v.
Mukasey, 551 F.3d 113, 122 (2d Cir. 2008); Sandoval-Lua v.
Gonzales, 499 F.3d 1121, 1130 (9th Cir. 2007), authority
affirmed in Rosas-Castaneda v. Holder, 630 F.3d 881, 888
(9th Cir. 2011) (ruling that enactment of REAL ID Act does
not affect the holding of Sandoval-Lua).
We conclude that the Tenth Circuit’s approach hews more
closely to the relevant statutory text. In removal proceedings
under the INA, Congress has commanded that the government
sustain the burden of establishing removability by clear and
convincing evidence. 8 U.S.C. § 1229a(c)(3)(A). But at the
relief stage, the clear text of the statute shifts the burden to the
removable noncitizen to establish that he "satisfies the appli-
cable eligibility requirements." Id. § 1229a(c)(4)(A)(i).
To satisfy his burden, an applicant for cancellation of
removal must, among other things, demonstrate by a prepon-
derance of the evidence that he "has not been convicted of any
aggravated felony," id. § 1229b(a)(3). " ‘The burden of show-
ing something by a preponderance of the evidence . . . simply
requires the trier of fact to believe that the existence of a fact
is more probable than its nonexistence.’ " United States v.
Manigan, 592 F.3d 621, 631 (4th Cir. 2010) (quoting Con-
crete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension
Trust for S. Cal., 508 U.S. 602, 622 (1993)). Presentation of
an inconclusive record of conviction is insufficient to meet a
noncitizen’s burden of demonstrating eligibility, because it
fails to establish that it is more likely than not that he was not
convicted of an aggravated felony. In such a case, fidelity to
the INA requires that the noncitizen, as the party bearing the
burden of proof, suffer the detriment.
Applying this reasoning here, we conclude that Salem has
failed to satisfy his burden of proof to demonstrate that he is
eligible for cancellation of removal. The government unques-
tionably met its burden of establishing by clear and convinc-
SALEM v. HOLDER 9
ing evidence that Salem was removable for having been
convicted of two or more crimes involving moral turpitude,
and indeed Salem conceded the point. The burden then shifted
to Salem to demonstrate eligibility for cancellation of removal
by showing, among other things, that he had not been con-
victed of an aggravated felony. See 8 U.S.C.
§ 1229a(c)(4)(A)(i).
Salem also concedes that the only evidence he submitted to
the IJ to meet his burden—the 2007 Virginia record of con-
viction for petit larceny—is inconclusive as to whether he was
convicted of an aggravated felony. Thus viewing the totality
of evidence proffered by Salem to sustain his burden, it is
equally likely that he was convicted of an aggravated felony
as it is that he was not. Because Salem failed to meet his bur-
den to show eligibility for discretionary relief, he is not enti-
tled to cancellation of removal.
B.
To resist the plain import of the statutory text, Salem con-
tends that the Supreme Court’s decision in Carachuri-
Rosendo v. Holder, 130 S. Ct. 2577 (2010), controls this case
and compels reversal of the BIA’s decision. But Salem misap-
prehends the nature of the Court’s holding.
The petitioner in Carachuri-Rosendo had in two separate
instances pleaded guilty in Texas to misdemeanor drug pos-
session. Id. at 2583. The prosecutor could have charged the
petitioner with a felony in the second case but elected against
it. Id. at 2581–83. The government initiated removal proceed-
ings based on the petitioner’s violation of a controlled-
substance law. Id. at 2583. The petitioner conceded remov-
ability but sought cancellation of removal. Id. In response, the
government contended that, because the petitioner could have
been prosecuted for a felony—even though he was not —he
had been convicted of an aggravated felony under the INA
10 SALEM v. HOLDER
and was thus barred from receiving discretionary relief. Id. at
2582.
Castigating the government’s "hypothetical approach" as
"ignor[ing] both the conviction . . . and the conduct actually
punished by the state offense," the Court held that "[t]he mere
possibility that the defendant’s conduct, coupled with facts
outside of the record of conviction, could have authorized a
felony conviction under federal law is insufficient." Id. at
2588–89. The Court underscored the infirmity of the govern-
ment’s argument in that "it focuses on facts known to the
immigration court that could have but did not serve as the
basis for the state conviction and punishment." Id. at 2588.
Read properly, Carachuri-Rosendo offers Salem no refuge.
The government here is not speaking in hypotheticals, and
both parties agree that Salem may actually have been "con-
victed" of an aggravated felony. On this record, the clear stat-
utory mandate placed the burden on Salem to prove his
eligibility for discretionary relief from removal by showing
that it was more probable than not that his larceny conviction
was not an aggravated felony. Carachuri-Rosendo does not
hold otherwise.
C.
Salem contends further that "the [BIA] impermissibly
imposed a level of the burden of proof upon [him] higher than
a preponderance of the evidence by requiring the petitioner to
produce evidence outside the record of conviction in contra-
vention of the modified categorical approach." Pet’r’s Br. 15.
We disagree.
The Supreme Court has adopted the categorical approach in
the criminal-sentencing context to maintain fidelity to con-
gressional intent, safeguard defendants’ Sixth Amendment
rights, and minimize a range of practical concerns. E.g., Tay-
lor v. United States, 495 U.S. 575, 600–01 (1990); see also
SALEM v. HOLDER 11
United States v. Alston, 611 F.3d 219, 225 (4th Cir. 2010)
(enumerating twin aims of categorical approach as avoiding
collateral trials and protecting defendants’ Sixth Amendment
rights).
The categorical approach "generally requires the trial court
to look only to the fact of conviction and the statutory defini-
tion of the prior offense" when determining whether a prior
conviction may be used to enhance a defendant’s sentence
under the Armed Career Criminal Act ("ACCA"), 18 U.S.C.
§ 924(e). Taylor, 495 U.S. at 602. Thus Taylor teaches that a
conviction under a state statute constitutes a conviction for
purposes of enhancement "if either its statutory definition
substantially corresponds to [the] ‘generic’ [crime], or the
charging paper and jury instructions actually required the jury
to find all the elements of [the] generic [crime] in order to
convict the defendant." Id.
Where the relevant conviction submitted by the govern-
ment to enhance a defendant’s sentence is the result of a
guilty plea under a divisible state statute, the trial court "is
generally limited to examining the statutory definition, charg-
ing document, written plea agreement, transcript of plea collo-
quy, and any explicit factual finding by the trial judge to
which the defendant assented." Shepard v. United States, 544
U.S. 13, 16 (2005). The inquiry centers on "whether the plea
had ‘necessarily’ rested on the fact identifying the [crime] as
generic." Id. at 21. Review of the record is restricted even fur-
ther when ascertaining the nature of a conviction secured by
Alford plea. Alston, 611 F.3d at 226 ("[A] prosecutor’s proffer
of the factual basis for an Alford plea does not satisfy the
requirements of the modified categorical approach.").
Two circuits have employed the categorical approach to
hold that presentation of an inconclusive record of conviction
satisfies a noncitizen’s burden to demonstrate that he has not
been convicted of an aggravated felony. Martinez, 551 F.3d
at 118–22; Sandoval-Lua, 499 F.3d at 1129–32. The Ninth
12 SALEM v. HOLDER
Circuit in Sandoval-Lua assumed that the categorical
approach should be used in the relief-from-removal context,
confining discussion of its reasoning to a footnote, 499 F.3d
at 1130 n.9. According to the Ninth Circuit, similarities
between the language used in the ACCA and the
INA—specifically, the requirement that a noncitizen have
been "convicted" of an aggravated felony, rather than
adjudged to have just "committed" such a crime—justified
extension of the categorical approach to relief-from-removal
proceedings. Id.
The Second Circuit in Martinez devoted significantly more
time to explaining the propriety of using the categorical
approach at the relief stage. Like the Ninth Circuit in
Sandoval-Lua, 499 F.3d at 1130 n.9, the Second Circuit
emphasized the use of the word "conviction" in the INA,
Martinez, 551 F.3d at 118 n.3. The bulk of the Second Cir-
cuit’s reasoning focused on practical difficulties presented by
failure to confine the relief inquiry in accordance with stric-
tures of the categorical approach.
Positing that demanding more of the noncitizen "necessar-
ily requires looking into evidence of [the noncitizen’s] actual
conduct," the Second Circuit concluded that "[i]t was the
desire to avoid such particular inquiries—whether designed to
show that a specific defendant was less or more culpable than
what his actual conviction required—that led us and the
Supreme Court to focus on categorical analysis." Id. at 121.
The court also expressed concern that " ‘the BIA and review-
ing courts are ill-suited to readjudicate the basis of prior crim-
inal convictions.’ " Id. at 122 (quoting Dulal-Whiteway v.
DHS, 501 F.3d 116, 132 (2d Cir. 2007)).
With respect for our colleagues on the Second and Ninth
Circuits, we believe that Martinez and Sandoval-Lua elide the
clear statutory language of the INA establishing the nonciti-
zen’s burden in relief-from-removal proceedings. Moreover,
we are reluctant to extend application of the categorical
SALEM v. HOLDER 13
approach to the immigration relief context given the unique-
ness of the INA’s burden-shifting regime. It bears repeating
that Salem was not in the dock facing criminal sanctions, but
instead sought the government’s largesse to avoid removal.
And while we have held that the categorical approach governs
the inquiry when determining removability in the first
instance, Soliman, 419 F.3d at 284, we have never considered
whether the evidentiary limits imposed by that approach
should apply when the burden shifts to the noncitizen to prove
his eligibility for cancellation of removal. As to that question,
we note that the Supreme Court has expressed some reserva-
tion about a wholesale adoption of the categorical approach in
the immigration context. See Nijhawan v. Holder, 129 S. Ct.
2294, 2303 (2009) (stating that the Taylor-Shepard line of
cases "developed [the evidentiary] list for a very different pur-
pose, namely that of determining [in the sentencing context]
which statutory phrase (contained within a statutory provision
that covers several different generic crimes) covered a prior
conviction," and finding "nothing in prior law that so limits
the immigration court").5
In any event, Salem made no attempt to offer additional
evidence to the IJ beyond the record of conviction. Thus we
need not address today the proper scope and limit—if any—of
a noncitizen’s evidentiary presentation when seeking relief
from removal.
5
The Court in Carachuri-Rosendo stated that Nijhawan was limited to
"consider[ing] how to calculate the amount of loss once a conviction for
a particular category of aggravated felony has occurred." 130 S. Ct. at
2587 n.11. We also acknowledge that the majority in Carachuri-Rosendo
looked to the "record of conviction" to determine of which offense the
petitioner had actually been convicted, thereby rejecting the government’s
contention that the petitioner was ineligible for cancellation of removal
because he could have been charged with a federal felony for his prior
criminal conduct. Id. at 2587 n.12. That said, neither Carachuri-Rosendo
nor Nijhawan had cause to discuss the import of burden shifting at the
relief stage, a factor critical to our doubts about the applicability of the cat-
egorical approach in this context.
14 SALEM v. HOLDER
We are satisfied that the BIA correctly applied the burden-
shifting standard imposed by Congress when a petitioner
seeks cancellation of removal, and that it did so in a manner
consistent with the dictates of Taylor and Shepard. And like
the BIA, we are not free to ignore the results of that clear leg-
islative mandate. The evidence before the BIA showed that
Salem had been convicted of an offense—petit larceny (third
subsequent)—that on its face satisfied the requirements of an
"aggravated felony" as defined by the INA. To the extent
Salem contended that he was convicted of an offense that was
not an aggravated felony because of the divisible nature of
Virginia’s petit larceny statute, the BIA did no more than
place the burden on him to produce "evidence encompassed
within the ‘record of conviction’—such as a charging instru-
ment, a plea agreement, or a plea colloquy transcript—which
demonstrates that he pled guilty to, and was convicted of, an
offense falling outside the scope of the aggravated felony def-
inition." J.A. 7 (emphasis added).
It is true enough that the relevant record failed to resolve
the ambiguity surrounding Salem’s conviction for petit lar-
ceny. For reasons we have explained, however, we decline to
accept Salem’s view that this ambiguity should be resolved in
his favor. Instead, we hold that where, as here, the relevant
evidence of conviction is in equipoise, a petitioner has not sat-
isfied his statutory burden to prove eligibility for relief from
removal.6
6
This uncontroversial principle finds support in our decision in United
States v. Haught, 387 Fed. App’x 327, 329 (4th Cir. 2010). The district
court in Haught determined that the defendant was not entitled to a sen-
tencing adjustment for acceptance of responsibility, in part because results
of a drug test indicated that he may have used marijuana even after enter-
ing a guilty plea. Id. at 328. Similar to Salem’s argument here, the defen-
dant contended "that the district court erred because the evidence
established that [his] marijuana use could have just as easily occurred
before the entry of his plea agreement as it could have after it," id. Given
that the defendant bears the burden of showing by a preponderance "that
he is entitled to an offense level adjustment for acceptance of responsibil-
ity," we concluded that Haught failed to sustain his burden because "the
evidence was in equipoise regarding the timing of his drug use." Id. at
328–29.
SALEM v. HOLDER 15
D.
Salem argues finally that the BIA impermissibly relied on
the factual basis for his Alford plea in reaching its ruling. The
record demonstrates, however, that the BIA did not use these
facts to support its conclusion. It merely noted the obvious,
i.e., that the only evidence in the record bearing on the partic-
ulars of Salem’s 2007 conviction for petit larceny was not
helpful to him.
The BIA acknowledged Salem’s contention that review of
the colloquy is impermissible because he entered an Alford
plea. It concluded, however, that the issue was irrelevant,
because "the fact remains that the respondent has produced no
evidence to establish that his violation . . . involved an ele-
ment of Virginia larceny falling outside the theft aggravated
felony definition." J.A. 7.
We agree with the BIA that, Alford plea or not, Salem did
not sustain his burden of showing by a preponderance of the
evidence that he has not been convicted of an aggravated fel-
ony. Accordingly, we affirm the BIA’s ruling that Salem is
ineligible for cancellation of removal.
AFFIRMED