     Case: 11-60836     Document: 00512043487         Page: 1     Date Filed: 11/05/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         November 5, 2012
                                     No. 11-60836
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

MANUEL P. MUTZ PEREZ, also known as Manual Pablo Mutz, also known as
Manuel Pablo Mutz-Perez, also known as Manuel Mutz,

                                                  Petitioner

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

                                                  Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A044 623 311


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Guatemalan citizen Manuel P. Mutz Perez (Mutz), a lawful permanent
resident of the United States, was convicted of delivery of cocaine under
§ 481.112(a) of the Texas Health and Safety Code. He conceded removability on
the ground that the offense was a controlled substance offense and applied for
cancellation of removal under 8 U.S.C. § 1229b(a), among other relief. Because
he failed to show that his cocaine offense was not an aggravated felony, he was


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 11-60836    Document: 00512043487      Page: 2   Date Filed: 11/05/2012

                                  No. 11-60836

determined to be ineligible for cancellation of removal, and his subsequent
motion to reopen the proceeding based upon new evidence was denied. He
petitions for review of the orders of the Board of Immigration Appeals (BIA)
denying his application for cancellation of removal and his motion to reopen.
      Mutz challenges the BIA’s ruling that he was required to provide
documentation showing that his cocaine offense was not an aggravated felony
in order to qualify for cancellation of removal. He contends that he was not
required to produce any documentary evidence because the applicable
preponderance of the evidence standard is a burden of persuasion, not a burden
of production. He asserts that the Government had the initial burden to produce
evidence indicating that the aggravated felony bar may apply. He contends that
he met his burden of proving that the offense was not an aggravated felony by
showing that, in light of an inconclusive record, he may have been convicted
under the provision of the Texas statute that criminalized “offers to sell” a
controlled substance.
      While delivery of a controlled substance under § 481.112(a) encompasses
offers to sell, actual physical delivery also violates the statute. See TEX. HEALTH
& SAFETY CODE ANN. §§ 481.002(8), 481.112(a).             Actual delivery also is
punishable as a felony under the Controlled Substances Act. See 8 U.S.C. § 841.
Therefore, the Texas offense may be committed in a way that falls within the
definition of an aggravated felony. See 8 U.S.C. § 1101(a)(43)(B); 18 U.S.C.
§ 924(c)(2).
      Mutz bore the burden of proving by preponderance of the evidence that his
offense under § 481.112(a) was not an aggravated felony. See Vasquez-Martinez
v. Holder, 564 F.3d 712, 715-16 (5th Cir. 2009) (citing 8 U.S.C. § 1229a(c)(4)(A)
and 8 C.F.R. § 1240.8(d)). He produced no evidence to show that the offense
involved an offer to sell. He did not meet this burden and thereby failed to
demonstrate that he was eligible for cancellation of removal. The Government
had no burden to show that the offense was an aggravated felony. See id. at 716.

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                                 No. 11-60836

For these reasons, the BIA did not err in dismissing Mutz’s appeal or in denying
his motion to reopen.
      PETITIONS FOR REVIEW DENIED.




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