                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 January 25, 2012
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                              FOR THE TENTH CIRCUIT


    JUAN JOSE MARTINEZ-DIAZ,

                Petitioner,

    v.                                                    No. 11-9512
                                                      (Petition for Review)
    ERIC H. HOLDER, JR., United States
    Attorney General,

                Respondent.


                              ORDER AND JUDGMENT *


Before HARTZ, ANDERSON, and BALDOCK, Circuit Judges.



         Petitioner Juan Jose Martinez-Diaz, proceeding pro se, petitions for review

of the decision by the Board of Immigration Appeals (BIA) upholding the

decision by the immigration judge (IJ) denying his request for cancellation of

removal. Exercising our jurisdiction under 8 U.S.C. § 1252(a)(1), we deny the

petition.


*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I. Background

      Petitioner is a native and citizen of Mexico. He was admitted to the United

States as an immigrant in January 1995. In December 1997 Petitioner pleaded

guilty to violating Colo. Rev. Stat. § 18-2-201 by conspiring to commit

aggravated motor theft in the first degree, as defined in Colo. Rev. Stat.

§ 18-4-409(2). As part of his sentence, he was ordered to pay restitution in the

amount of $14,809.31. In March 2007 he pleaded guilty to violating both

Colo. Rev. Stat. § 18-3-204, assault in the third degree, and Colo. Rev. Stat.

§ 18-6-401(1)(a), child abuse.

      The Department of Homeland Security commenced removal proceedings

against Petitioner in April 2007, charging him as removable under 8 U.S.C.

§ 1227(a)(2)(E)(i), as an alien who has been convicted of a crime of domestic

violence, a crime of stalking, or a crime of child abuse, child neglect, or child

abandonment. Petitioner appeared before an IJ and denied that he was convicted

of a crime of child abuse and the corresponding charge of removability. Counsel

explained that Petitioner had not understood what he was pleading guilty to and

he was going to file for postconviction relief. At a hearing in September 2007 the

IJ sustained the charge of removability because there had been no ruling on the

request for postconviction relief and the child-abuse conviction had the requisite

degree of finality.




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      In March 2008 Petitioner applied for cancellation of removal as a

permanent resident. An alien who is a permanent resident is eligible for

cancellation of removal if the alien “(1) has been . . . 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.” 8 U.S.C. § 1229b(a).

      The IJ held an initial hearing on the application, but continued the hearing

to allow Petitioner to submit additional evidence on whether the 1997

motor-vehicle-theft offense was an aggravated felony. Petitioner submitted the

felony complaint and information, judgment of conviction and sentence, and

disposition for the 1997 offense.

      At the conclusion of the continued hearing, the IJ issued an oral decision

denying cancellation of removal. The IJ determined that the record was

inconclusive on whether the 1997 offense qualified as an aggravated felony, but

noted that Petitioner bore the burden of proof to demonstrate his eligibility for

relief. The IJ explained that the BIA and this court had held that if the record is

inconclusive on whether an alien had committed a disqualifying offense, then the

alien has failed to prove his eligibility for relief. Accordingly, the IJ concluded

that Petitioner had not established his eligibility for cancellation of removal. The

BIA upheld the IJ’s determination, relying on the same reasoning.




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II. Discussion

      Petitioner seeks review of the denial of discretionary relief, a determination

we ordinarily lack jurisdiction to review. See 8 U.S.C. § 1252(a)(2)(B)(i),(ii).

The denial of relief in this case, however, turned on the legal questions of

whether Petitioner had the burden of proving that he had not been convicted of an

aggravated felony and whether an inconclusive record of conviction can satisfy

that burden. We have jurisdiction to review these questions of law. See 8 U.S.C.

§ 1252(a)(2)(D); Garcia v. Holder, 584 F.3d 1288, 1289 n.2 (10th Cir. 2009). We

review the questions de novo. See Herrera-Castillo v. Holder, 573 F.3d 1004,

1007 (10th Cir. 2009).

      First, Petitioner appears to suggest that the government had the burden of

proving that he had been convicted of an aggravated felony. If the government

were charging Petitioner with being removable as an aggravated felon under

8 U.S.C. § 1227(a)(2)(A)(iii), then the Petitioner would be correct, because the

government bears the burden of proving removability in those circumstances. See

8 C.F.R. § 1240.8(a). But the aggravated-felony issue was not relevant to

Petitioner’s removability. The government charged Petitioner with removability

under 8 U.S.C. § 1227(a)(2)(E)(i), as an alien who had been convicted of a crime

of child abuse. The IJ sustained the charge of removability on this basis and

Petitioner did not challenge this determination on appeal to the BIA.




                                         -4-
      The relevance of whether Petitioner was convicted of an aggravated felony

is that such a conviction makes a permanent resident ineligible for cancellation of

removal. After the IJ sustained the charge of removability, Petitioner sought

cancellation of removal, and an alien seeking relief from removal has the “burden

of establishing that he or she is eligible for any requested benefit or privilege and

that it should be granted in the exercise of discretion.” 8 C.F.R. § 1240.8(d); see

Garcia, 584 F.3d at 1290 (“There is no question in this case that [the alien] is

removable. Therefore, the burden shifted to him to prove the absence of any

impediment to discretionary relief.”). The regulations further provide that “[i]f

the evidence indicates that one or more of the grounds for mandatory denial of the

application for relief may apply, the alien shall have the burden of proving by a

preponderance of the evidence that such grounds do not apply.” 8 C.F.R.

§ 1240.8(d). Accordingly, the agency did not err in concluding that Petitioner

bore the burden to prove that he had not been convicted of an aggravated felony.

      Petitioner next argues that the inconclusiveness of the record regarding the

basis of his conviction demonstrates that he met his burden of proving that he was

not necessarily convicted of an aggravated felony. He relies on Sandoval-Lua v.

Gonzales, 499 F.3d 1121, 1130 (9th Cir. 2007). In Garcia, however, we rejected

the reasoning of Sandoval-Lua. See 584 F.3d at 1290. We wrote:

      The fact that [the alien] is not to blame for the ambiguity
      surrounding his criminal conviction does not relieve him of his
      obligation to prove eligibility for discretionary relief. Because it is

                                          -5-
      unclear from his record of conviction whether he committed a
      [disqualifying crime], we conclude he has not proven eligibility for
      cancellation of removal.

Id.; see Salem v. Holder, 647 F.3d 111, 116 (4th Cir. 2011) (following Garcia).

      Petitioner attempts to distinguish Garcia by noting that his case involves a

lawful permanent resident and an aggravated felony whereas Garcia involved a

nonpermanent resident and a crime involving moral turpitude (CIMT). But this

proposed distinction has no support in the language of the pertinent regulation. In

both situations the alien seeks the discretionary relief of cancellation of removal,

and the burden of persuasion is on the alien to prove eligibility for such relief.

See 8 C.F.R. § 1240.8(d). The regulation does not distinguish between aliens

based on whether they are permanent aliens, nor does it distinguish among

different grounds of eligibility for cancellation of removal. We therefore agree

with the BIA that “[Garcia’s] holding applies equally to lawful permanent

residents who bear the burden of establishing that they are not aggravated felons

under [8 U.S.C. § 1229b(a)(3)],” Admin. R. at 4.

      Applying Garcia’s holding to Petitioner’s case, the BIA properly

determined that he had failed to meet his burden of demonstrating his eligibility

for the relief he requested. Petitioner was convicted of conspiring to commit

aggravated motor theft, as defined in Colo. Rev. Stat. § 18-4-409(2). A person

may be convicted under that statute for knowingly obtaining or exercising control

over the motor vehicle of another either “without authorization” or by “threat or

                                          -6-
deception.” Colo. Rev. Stat. § 18-4-409(2). As relevant to this case, an alien

convicted of conspiracy is convicted of an aggravated felony when the substantive

crime that was the object of the conspiracy was an offense that involved “fraud or

deceit” and the potential loss to the victim or victims exceeded $10,000. See

8 U.S.C. § 1101(a)(43)(M)(i) and (U).

      The BIA noted, “It is entirely possible that [Petitioner’s] conviction was for

theft by deception, which necessarily involves deceit,” and “[i]t is also unclear

whether or not the potential loss to the victim exceeds $10,000, although . . .

[Petitioner] was ordered, along with his co-conspirator, to pay restitution to his

victim exceeding $10,000.” Admin. R. at 4. Accordingly, the BIA determined

that because the record of conviction was inconclusive, Petitioner had failed to

meet his burden of establishing his eligibility for relief by a preponderance of the

evidence. Id. at 5. Petitioner has failed to demonstrate that the BIA committed

legal error in this decision.

III. Conclusion

      We DENY the petition for review. Petitioner’s motion to proceed in forma

pauperis is GRANTED.


                                                     Entered for the Court



                                                     Harris L Hartz
                                                     Circuit Judge

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