FILED
NOT FOR PUBLICATION JUN 05 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ROBERTO DURAN-GALAVIZ, AKA Nos. 09-70021, 09-72338
Jose Barajas Martinez
Agency No. A095-682-888
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER JR., Attorney General
of the United States,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 15, 2013
San Francisco, California
Before: CLIFTON, and BEA, Circuit Judges, and KORMAN,
Senior District Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Edward R. Korman, Senior United States District
Judge for the Eastern District of New York, sitting by designation.
1
Roberto Duran-Galaviz (“Duran”) seeks review of the Board of Immigration
Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”)
decision to deny his application for cancellation of removal, and the BIA’s order
denying his motion to reconsider the dismissal. Duran admitted he was removable
pursuant to 8 U.S.C. § 1182(a)(6)(A)(i), which authorizes removal of any “alien
present in the United States without being admitted or paroled, or who arrives in the
United States at any time or place other than as designated by the Attorney General.”
In his applications seeking cancellation of removal Duran admitted that he had pled
guilty to drug possession. Subsequently, in testimony before the IJ he admitted that
he served roughly a year in prison for possession of crack cocaine. Based on these
admissions, the IJ found that Duran was statutorily ineligible for cancellation of
removal. See 8 U.S.C. § 1182(a)(2)(A)(i)(II) (made applicable to applications for
cancellation of removal by 8 U.S.C. § 1229b(b)(1)(C)).
Duran unsuccessfully appealed to the BIA, arguing that, notwithstanding his
own admissions, the record in front of the IJ did not contain any judicially
noticeable evidence of his conviction and therefore was insufficient to justify
denial of his application for cancellation of removal. We deny his petition for
review of the BIA’s decision as well his petition for review of the BIA’s denial of
his motion for reconsideration.
2
Where there is evidence that one of the grounds for mandatory denial of an
application for cancellation of removal applies, “the alien [has] the burden of
proving by a preponderance of the evidence that such grounds do not apply.” 8
C.F.R. § 1240.8(d); see also 8 U.S.C. § 1229a(c)(4). Moreover, we recently held
that where the ground for mandatory denial of cancellation is a criminal conviction
the applicant must make an affirmative showing that he “has not been convicted
of” a disqualifying crime. Young v. Holder, 697 F.3d 976, 988 (9th Cir. 2012) (en
banc) (quoting 8 U.S.C. § 1229b(a)(3)). This burden cannot be met “by merely
establishing that the relevant record of conviction is inconclusive as to whether”
the conviction was for an offense that would make the alien inadmissible. Id. at
979–80.1
Duran’s own admissions were more than sufficient to raise the possibility
that he was disqualified and required him to show that he had not been convicted
of an offense that would bar him from relief. Duran did not come forward with any
evidence suggesting that he did not in fact commit a disqualifying crime or that the
1
If Duran’s controlled substance conviction had been the basis for the
Notice to Appear, then the government would have had the burden of proof. But in
this case, Duran already admitted he was removable on other grounds, and he is
applying for cancellation of removal. Thus, the burden falls on him and the
unclear record means he has not met his burden of proof.
3
crime he committed was not disqualifying. Thus, he failed to carry his burden of
proving his eligibility for the relief requested.
PETITIONS FOR REVIEW DENIED.
4