                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-1639


NORMA ELIZABETH ALEMAN-COREAS,

                Petitioner,

          v.

ERIC H. HOLDER, JR., Attorney General,

                Respondent.



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


Submitted:   November 22, 2011          Decided:   December 13, 2011


Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Petition denied by unpublished per curiam opinion.


Marc Seguinót, SEGUINÓT & ASSOCIATES, P.C., Dunn Loring,
Virginia, for Petitioner.       Tony West, Assistant Attorney
General, Ada E. Bosque, Senior Litigation Counsel, Mona Maria
Yousif,   Office  of   Immigration   Litigation,  UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Norma Elizabeth Aleman-Coreas, a native and citizen of

El Salvador, petitions for review of an order of the Board of

Immigration      Appeals    (“Board”)     dismissing    her   appeal    from    the

immigration judge’s decision finding her removable as charged

and denying her application for cancellation of removal.

              On appeal, Aleman-Coreas does not dispute the agency’s

finding that, based on her 1996 Virginia conviction for petit

larceny, she is removable as an alien, who within five years of

admission, was convicted of a crime involving moral turpitude

for which a sentence of one year or longer may be imposed.                     See

8 U.S.C. § 1227(a)(2)(A)(i) (2006).                Accordingly, the issue is

now waived, see United States v. Jones, 308 F.3d 425, 427 n.1

(4th Cir. 2002), and we uphold the finding of removability on

this ground.

              We also uphold the agency’s finding that Aleman-Coreas

failed to establish her eligibility for cancellation of removal.

To   establish    such     eligibility,       Aleman-Coreas   must    demonstrate

that she (1) has been a lawful permanent resident for not less

than   five    years;    (2)    has   continuously    resided   in    the    United

States for seven years; and (3) “has not been convicted of any

aggravated felony.”            8 U.S.C. § 1229b(a) (2006); see Salem v.

Holder,   647    F.3d    111,    114-15   (4th    Cir.),   petition    for    cert.

filed, 80 U.S.L.W. 3098 (Aug. 17, 2011).

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             The    record       establishes            that   Aleman-Coreas          has      been

twice convicted of assault and battery in Virginia, in violation

of Va. Code Ann. § 18.2-57.2 (LexisNexis 2009), a statute that

criminalizes both violent and non-violent conduct.                              See 8 U.S.C.

§ 1101(a)(43)(F) (2006) (defining aggravated felony as including

“a crime of violence . . . for which the term of imprisonment

[is] at least one year”); United States v. White, 606 F.3d 144

(4th Cir. 2010) (holding that Va. Code Ann. § 18.2-57.2 does not

contain, as an element, the use of physical force, and therefore

court must apply modified categorical approach to discern if

defendant    committed       crime          of    violence).           In    light        of    “the

divisible nature” of Virginia’s assault and battery statute, the

agency properly placed the burden on Aleman-Coreas “to produce

evidence encompassed within the record of conviction — such as a

charging     document,       a     plea          agreement,       or    a     plea     colloquy

transcript — which demonstrates that [s]he pled guilty to, and

was convicted of, an offense falling outside the scope of the

aggravated    felony     definition.”                   Salem,    647       F.3d     at    119-20

(internal quotations omitted).                        We have held that “where . . .

the   relevant      evidence           of    conviction          is     in    equipoise,          a

petitioner has not satisfied h[er] statutory burden to provide

eligibility for relief from removal.”                       Id. at 120.

             Accordingly,         we    deny          the   petition    for     review.           We

dispense     with    oral        argument          because       the    facts      and         legal

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contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                  PETITION DENIED




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