Gustavo Tapia v. Eric Holder, Jr.
UNPUBLISHED OPINION FILED. [11-60533 Affirmed ] Judge: EHJ , Judge: LHS , Judge: CH Mandate pull date is 10/29/2012 [11-60533]
Date Filed: 09/06/2012
IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
September 6, 2012
Lyle W. Cayce
GUSTAVO ADOLFO TAPIA, also known as Gustavo A. Tapia, also known as
AdolfoTapia, also known as Adlopho Tappia, also known as Gustavo Tapia,
ERIC H. HOLDER, U.S. ATTORNEY GENERAL,
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A043 326 573
Before JONES, Chief Judge, and SOUTHWICK and HAYNES, Circuit Judges.
Gustavo Adolfo Tapia, a native and citizen of the Dominican Republic,
petitions for review of the dismissal by the Board of Immigration Appeals (BIA)
of his appeal of the denial of his application for cancellation of removal. See
8 U.S.C. § 1229b(a). To obtain cancellation of removal, the alien must not have
been convicted of any aggravated felony. § 1229b(a)(3). The Immigration Judge
found that Tapia’s two New York convictions for the sale of a controlled
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
Date Filed: 09/06/2012
substance in the fourth degree, see New York Penal Law § 220.34, were for
aggravated felonies. The BIA dismissed Tapia’s appeal because he failed to
carry his burden of proving that he was not convicted of an aggravated felony.
See 8 U.S.C. § 1229a(c)(4)(A)(i); 8 C.F.R. § 1208.4. Tapia argues that the record
fails to establish that his New York drug convictions are aggravated felonies;
therefore, he argues, he is eligible for cancellation of removal.
“The BIA’s determination that an alien is ineligible for discretionary relief
in the form of cancellation of removal is a question of law that we review de
novo, deferring to the BIA’s interpretation of the statutes and regulations it
administers.” Vasquez-Martinez v. Holder, 564 F.3d 712, 715 (5th Cir. 2009).
Tapia was ordered removed on two bases: (1) under INA § 237(a)(2)(B)(i),
8 U.S.C. § 1227(a)(2)(B)(i) as an alien convicted of violating “any law or
regulation of a State . . . relating to a controlled substance,” and (2) under
§ 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii) as an aggravated felon. Tapia
conceded removability on the first charge.
Once Tapia’s removability was established, he had the burden of
establishing that he was eligible for cancellation of removal. § 1229a(c)(4)(A)(i);
see Vasquez-Martinez, 564 F.3d at 715-16. Since “the evidence indicate[d] that
one or more of the grounds for mandatory denial of the application for relief may
apply” (i.e., conviction of an aggravated felony), he had the burden of proving by
a preponderance of the evidence that such grounds did not apply. § 1240.8(d);
see Moncrieffe v. Holder, 662 F.3d at 392 (5th Cir. 2011) cert. granted, 132 S. Ct.
1857 (2012); Vasquez-Martinez, 564 F.3d at 715-16. Tapia presented no evidence
before the IJ or the BIA to show that he had not been convicted of an aggravated
felony, and he points to no such evidence here. The BIA did not err in dismissing
PETITION FOR REVIEW DENIED.
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