                                                                           FILED
                            NOT FOR PUBLICATION                             SEP 11 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


JORGE CUEVAS-MORENO,                             No. 10-71374

              Petitioner,                        Agency No. A035-237-425

  v.
                                                 MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                    Argued and Submitted October 15, 2012.
                      Submission Vacated April 16, 2013.
                   Resubmitted for Decision September 4, 2013.

                              San Francisco, California

Before: HAWKINS, M. SMITH, and MURGUIA, Circuit Judges.

       Jorge Cuevas-Moreno challenges an order of the Board of Immigration

Appeals affirming the Immigration Judge’s determination that he was convicted of

an aggravated felony and is therefore ineligible for cancellation of removal.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Cuevas-Moreno was convicted of a crime of domestic violence that renders him

removable, but because he was only sentenced to 31 days, that crime is not an

aggravated felony, which would bar his application for cancellation of removal.

See 8 U.S.C. § 1101(a)(43)(F) (crime of violence is an aggravated felony only if

the term of imprisonment is at least one year).

      In addition the record contains an abstract of judgment indicating that

Cuevas-Moreno was also convicted of violating California Penal Code § 487(a),

which criminalizes the taking of “money, labor, or real or personal property.” That

statute is overbroad, which means that some convictions under the statute are

aggravated felonies, but others are not. Ramirez-Villalpando v. Holder, 645 F.3d

1035, 1039 (9th Cir. 2011). The parties dispute whether, under the modified

categorical approach, we may consider the criminal complaint that indicates

Cuevas-Moreno was charged with stealing personal property, conduct that would

constitute an aggravated felony category. See id. at 1039 (stating that § 487(a) is

overbroad because the theft of labor is not an aggravated felony).

      We need not resolve this dispute, however, because even without

considering the complaint, “the evidence indicates that one or more of the grounds

for mandatory denial of the application for relief may apply” and therefore, to

obtain cancellation of removal Cuevas-Moreno “[has] the burden of proving by a


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

1240.8(d); Young v. Holder, 697 F.3d 976, 988–990 (9th Cir. 2012) (en banc).

Cuevas-Moreno argues that the record does not “conclusively establish” that he

was convicted of an aggravated felony. Even if that is true, the record is at best

inconclusive and Cuevas-Moreno “cannot carry the burden of demonstrating

eligibility for cancellation of removal by establishing an inconclusive record of

conviction.” Young, 697 F.3d at 990.

      PETITION DENIED.




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