                                                                               FILED
                            NOT FOR PUBLICATION                                JUN 03 2013

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



                            FOR THE NINTH CIRCUIT


IGNACIO DIAZ-PEREZ,                              No. 10-70644

             Petitioner,                         Agency No. 031-083-017

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

              Respondent.


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

                            Submitted May 15, 2013**
                             San Francisco, California

Before: CLIFTON and BEA, Circuit Judges, and Korman, District Judge.***

       Ignacio Diaz-Perez seeks review of a decision by the Board of Immigration

Appeals (“BIA”). He contends that the BIA erroneously decided he was ineligible


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
       ***
             The Honorable Edward R. Korman, District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
for cancellation of removal under 8 U.S.C. § 1229b(a).

       In December 2005, an Arizona grand jury indicted Diaz-Perez on three drug-

related counts. Diaz-Perez pleaded guilty to Count 2, which stated that he

“knowingly transported for sale, imported into this state, or offered to transport for

sale or import into this state, sold, transferred, or offered to sell or transfer

Methamphetamine, a dangerous drug, . . . in violation of [Arizona statutes].”

       In April 2009, the government began proceedings to remove Diaz-Perez

from the United States. It specifically sought removal under 8 U.S.C. §

1227(a)(2)(B)(i), which authorizes removal of aliens who have violated a state’s

controlled-substance law. An immigration judge (“IJ”) found Diaz-Perez

removable for his commission of “a controlled substance violation.” Diaz-Perez

argued that he was eligible for a “cancellation of removal” under 8 U.S.C. §

1229b(a). That provision allows the Government to cancel the alien’s removal if

he: “(1) has been an alien 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 only dispute is whether Diaz-Perez’s 2005 drug conviction constituted

an “aggravated felony.” Diaz-Perez pleaded guilty to a statute that prohibits

                                            2
several types of conduct; some of the prohibited acts constitute an “aggravated

felony,” but others do not. To determine what Diaz-Perez had admitted, the IJ

ordered Diaz-Perez to provide a transcript of his 2005 plea proceedings. Diaz-

Perez returned in possession of the 2005 plea transcript, but he refused to give the

transcript to the IJ and instead argued that he did not have to provide any evidence

to establish his eligibility for cancellation of removal. The IJ rejected this

argument, found Diaz-Perez ineligible for a cancellation of removal, and ordered

him removed to Mexico.

      On appeal, the BIA held that Diaz-Perez had the burden to establish that he

had not committed an “aggravated felony,” which included the burden to produce

corroborating documents as requested by the IJ. Because he failed to do so, the

BIA dismissed his appeal. Diaz-Perez then filed a petition for review.

      Diaz-Perez has the burden to establish his eligibility by proving that he has

not committed an aggravated felony. See 8 U.S.C. §§ 1229a(c)(4), 1229b(a). But

he cannot carry this burden, once he admits a state drug crime, “by merely

establishing that the relevant record of conviction is inconclusive as to whether the

conviction [was] for an aggravated felony.” See Young v. Holder, 697 F.3d 976,

979–80 (9th Cir. 2012) (en banc).

      Accordingly, Diaz-Perez’s petition for review is

                                           3
DENIED.




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