                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 26 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



FRANCISCO ALFONSO ACEVEDO DE                     No. 11-70052
LEON,
                                                 Agency No. A017-838-384
              Petitioner,

  v.                                             MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



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

                              Argued March 7, 2012
                            Submitted October 24, 2012
                               Pasadena, California

Before: THOMAS, WARDLAW, and BERZON, Circuit Judges.

       Francisco Acevedo de Leon (“De Leon”) petitions for review of a December

28, 2010 decision rendered by the Board of Immigration Appeals (“BIA”). The

BIA affirmed an immigration judge’s decision finding De Leon ineligible for




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
cancellation of removal, pursuant to 8 U.S.C. § 1229b, because he was convicted

of an aggravated felony.

      We use the modified categorical approach to determine whether a petty theft

with priors conviction under Cal. Penal Code §§ 484(a) and 666 constitutes an

aggravated felony under 8 U.S.C. § 1101(a)(43)(G). See United States v. Rivera,

658 F.3d 1073, 1076-77 (9th Cir. 2011). Under that approach, De Leon contends

that the record evidence (the single-count felony complaint alleging that he “did

unlawfully . . . steal take and carry away the personal property of Wal Mart,” plus

the abstract of judgment recording his guilty plea to that count) does not establish

that his 2009 conviction is an aggravated felony, because the abstract of judgment

does not expressly indicate that De Leon pleaded guilty “as charged in the

complaint.” Cf. Fregozo v. Holder, 576 F.3d 1030, 1040 (9th Cir. 2009) (“[T]o

identify a conviction as the generic offense through the modified categorical

approach, when the record of conviction comprises only the indictment and the

judgment, the judgment must contain the critical phrase ‘as charged in the

Information.’” (citation omitted)).

      We assume for the purposes of this case, without deciding, that De Leon has

established, because of the absence of that phrase, that it is inconclusive whether

his 2009 petty theft with priors conviction qualifies as an aggravated felony.


                                          2
Under the REAL ID Act, which “places the burden of demonstrating eligibility for

cancellation of removal squarely on the noncitizen,” “an inconclusive record of

conviction does not demonstrate eligibility for cancellation of removal.” Young v.

Holder, — F.3d —, 2012 WL 4074668, at *9 (9th Cir. Sept. 17, 2012) (en banc).

       De Leon also asks us to take judicial notice of the plea hearing transcript

underlying his California state conviction. “Generally our review is confined to

the administrative record before the BIA.” Dent v. Holder, 627 F.3d 365, 371 (9th

Cir. 2010). We may review out-of-record evidence only where the BIA considers

the evidence; the BIA abuses its discretion by failing to consider the evidence; the

evidence comes from the BIA’s own records; or the evidence was not available at

the time the BIA made its decision. Id.; Gafoor v. I.N.S., 231 F.3d 645, 655-56

(9th Cir. 2000), superseded by statute on other grounds, Pub. L. 109-13, div. B, §

101(h)(2), 119 Stat. 231, 305 (2005). De Leon does not contend that the plea

transcript falls under any of these exceptions. Therefore, we deny his request for

judicial notice.

       For the foregoing reasons, De Leon’s petition is DENIED.




                                           3
