FILED
NOT FOR PUBLICATION OCT 26 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
FRANCISCO ALFONSO ACEVEDO DE No. 11-70052
LEON,
Agency No. A017-838-384
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued March 7, 2012
Submitted October 24, 2012
Pasadena, California
Before: THOMAS, WARDLAW, and BERZON, Circuit Judges.
Francisco Acevedo de Leon (“De Leon”) petitions for review of a December
28, 2010 decision rendered by the Board of Immigration Appeals (“BIA”). The
BIA affirmed an immigration judge’s decision finding De Leon ineligible for
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
cancellation of removal, pursuant to 8 U.S.C. § 1229b, because he was convicted
of an aggravated felony.
We use the modified categorical approach to determine whether a petty theft
with priors conviction under Cal. Penal Code §§ 484(a) and 666 constitutes an
aggravated felony under 8 U.S.C. § 1101(a)(43)(G). See United States v. Rivera,
658 F.3d 1073, 1076-77 (9th Cir. 2011). Under that approach, De Leon contends
that the record evidence (the single-count felony complaint alleging that he “did
unlawfully . . . steal take and carry away the personal property of Wal Mart,” plus
the abstract of judgment recording his guilty plea to that count) does not establish
that his 2009 conviction is an aggravated felony, because the abstract of judgment
does not expressly indicate that De Leon pleaded guilty “as charged in the
complaint.” Cf. Fregozo v. Holder, 576 F.3d 1030, 1040 (9th Cir. 2009) (“[T]o
identify a conviction as the generic offense through the modified categorical
approach, when the record of conviction comprises only the indictment and the
judgment, the judgment must contain the critical phrase ‘as charged in the
Information.’” (citation omitted)).
We assume for the purposes of this case, without deciding, that De Leon has
established, because of the absence of that phrase, that it is inconclusive whether
his 2009 petty theft with priors conviction qualifies as an aggravated felony.
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Under the REAL ID Act, which “places the burden of demonstrating eligibility for
cancellation of removal squarely on the noncitizen,” “an inconclusive record of
conviction does not demonstrate eligibility for cancellation of removal.” Young v.
Holder, — F.3d —, 2012 WL 4074668, at *9 (9th Cir. Sept. 17, 2012) (en banc).
De Leon also asks us to take judicial notice of the plea hearing transcript
underlying his California state conviction. “Generally our review is confined to
the administrative record before the BIA.” Dent v. Holder, 627 F.3d 365, 371 (9th
Cir. 2010). We may review out-of-record evidence only where the BIA considers
the evidence; the BIA abuses its discretion by failing to consider the evidence; the
evidence comes from the BIA’s own records; or the evidence was not available at
the time the BIA made its decision. Id.; Gafoor v. I.N.S., 231 F.3d 645, 655-56
(9th Cir. 2000), superseded by statute on other grounds, Pub. L. 109-13, div. B, §
101(h)(2), 119 Stat. 231, 305 (2005). De Leon does not contend that the plea
transcript falls under any of these exceptions. Therefore, we deny his request for
judicial notice.
For the foregoing reasons, De Leon’s petition is DENIED.
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