United States v. Samuel Acosta

1The Honorable Raymond C. Clevenger, III, United States Circuit Judge for the
Court of Appeals for the Federal Circuit, sitting by designation.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-3011
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Sergio Sanchez, *
*
Petitioner, *
* Appeal from the
v. * Board of Immigration Appeals
*
Eric H. Holder, Jr., *
Attorney General of the United States *
*
Respondent. *
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Submitted: June 16, 2010
Filed: August 2, 2010
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Before RILEY, Chief Judge, CLEVENGER1 and COLLOTON, Circuit Judges.
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CLEVENGER, Circuit Judge.
Sergio Sanchez petitions for review of an order of the Board of Immigration
Appeals (“BIA”) holding him statutorily ineligible for cancellation of removal. We
deny the petition.

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I
Upon the order of the Attorney General of the United States, aliens convicted
of certain criminal offenses are removed from the United States. Among such
offenses are convictions of two or more crimes involving moral turpitude, conviction
of violating a law relating to a controlled substance, and conviction of an aggravated
felony. See 8 U.S.C. § 1227(a)(2). The burden of proving by clear and convincing
evidence that an alien is removable lies with the government. 8 U.S.C. §
1229a(c)(3)(A). If the government sustains its burden to remove an alien, the
Attorney General may cancel removal if the alien meets certain statutory tests.
8 U.S.C. § 1229b. The burden of proving entitlement to cancellation of removal lies
with the alien, see 8 U.S.C. § 1229a(c)(4)(A)(i), who must carry the burden by a
preponderance of the evidence. See 8 C.F.R. § 1240.8(d). For a deportable
permanent resident alien to obtain cancellation of removal, he must prove 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).
When the government seeks to remove an alien on the grounds of conviction
of an aggravated felony, the government must prove commission of the offense.
“Aggravated felony” is defined, inter alia, by 8 U.S.C. § 1101(a)(43)(G) as “a theft
offense (including receipt of stolen property) . . . for which the term of imprisonment
[is] at least one year.” In some instances, it is not clear as a categorical matter that a
conviction under a broad state criminal statute meets the federal definition of an
aggravated felony. In those instances, a modified categorical test is used to determine
if the state offense meets the federal definition. See Shepard v. United States,
544 U.S. 13, 26 (2005). If the government meets its burden of proving conviction of
an aggravated felony, and the alien has sought cancellation of removal as relief, the
relief is deemed pretermitted because if the government has borne its burden to prove
conviction of an aggravated felony, the alien cannot sustain his burden to gain

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cancellation of removal. See, e.g., Olmsted v. Holder, 588 F.3d 556, 558 (8th Cir.
2009).
II
Mr. Sanchez is a native and citizen of Mexico who was admitted to the United
States in 1992 as a lawful permanent resident. On August 22, 2003, Mr. Sanchez was
convicted in Iowa of Theft in the Fifth Degree. On July 1, 2004, Mr. Sanchez was
convicted in Iowa of both Simple Assault and Theft in the Fifth Degree. On
October 1, 2004, Mr. Sanchez pled guilty to the crime of Theft in the Third Degree
in violation of Iowa Code § 714.1, and was sentenced to 365 days in jail and ordered
to pay $1,267.38 to Wal-Mart as restitution. On December 3, 2004, Mr. Sanchez was
convicted in Iowa of Theft in the Fifth Degree. On May 21, 2005, Mr. Sanchez was
convicted in Iowa of Possession of a Controlled Substance. From December 2005
through August 2007, Mr. Sanchez was convicted in Iowa of three more offenses of
Theft in the Fifth Degree.
On January 5, 2009, the Department of Homeland Security (“DHS”)
commenced removal proceedings against Mr. Sanchez with a Notice to Appear. The
Notice alleged that Mr. Sanchez was subject to removal (1) as an alien convicted of
two or more crimes of moral turpitude; (2) as an alien convicted of a controlled
substance violation; and (3) as an alien convicted of an aggravated felony. Prior to his
removal hearing, Mr. Sanchez filed a response to the Notice in which he admitted the
facts of his criminal history, conceded that he is removable on both the moral
turpitude and controlled substance grounds, denied removability on the aggravated
felony ground, and requested the opportunity to seek cancellation of his removal.
(Admin R. at 95-96.)
Mr. Sanchez, represented by able counsel, faced a predicament before the
Immigration Judge (“IJ”). Because he conceded that he was removable as an alien
convicted of two or more crimes of moral turpitude and of a controlled substance

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offense, the government did not have to prove his conviction of an aggravated felony
in order to sustain deportation. Further, as a deportable alien seeking cancellation of
removal, the burden was on Mr. Sanchez to establish entitlement to cancellation of
removal. In what may have been a tactical move to avoid shouldering of his burden
of proof, Mr. Sanchez pitched his case to the IJ on the grounds that the government
had failed to carry its burden to prove that violation of Iowa Code § 714.1 constitutes
commission of a federal aggravated felony under the modified categorical test.
Notwithstanding Mr. Sanchez’s insistence that the burden is on the government to
prove his violation of § 714.1 is an aggravated felony, the IJ understood the situation
and stated that the admitted focus of the hearing was on the issue of Mr. Sanchez’s
entitlement to cancellation of removal. (Admin. R. at 68-69.)
III
Before the IJ, Mr. Sanchez argued that his conviction in Iowa of Theft in the
Third Degree is not an aggravated felony within the meaning of 8 U.S.C.
§ 1101(a)(43)(G). Mr. Sanchez asserted that his Iowa conviction was not
categorically a federal theft offense and that there was insufficient evidence to support
a conclusion that he was convicted under a portion of the Iowa statute which satisfies
the federal theft definition under the modified categorical approach.
In support of the aggravated felony charge of removal, DHS offered several
documents into evidence. First, DHS offered a document that it described as a
“charging document” which charged Mr. Sanchez with the following:
The defendant is accused of the crime of Theft 4th 714.1 Ref 714.2(4) in
that the defendant on the 3rd day of March, 2004, at the Muscatine in
Muscatine County, did take 7 bottles of [cologne] from WalMart valued
at $40.00 average a bottle for a total value of $254.82 and didn’t pay for
in violation [of] Iowa Code 714.1 ref 714.2(3).

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In addition, DHS offered a second similar document that charged Mr. Sanchez with
the following:
The defendant is accused of the crime of Theft 2nd 714.1 Ref 714.2(2)
in that the defendant on the 28th day of February, 2004, at the Muscatine
in Muscatine County, did take 30 bottles of [cologne] from WalMart
valued at $40.00 a bottle for a total value of $1,012.56 without paying
for in violation of Iowa Code 714.1 ref 714.2(2).
Both documents were signed by complainants and sworn before a notary on April 30,
2004.
The IJ applied a modified categorical approach to determine if Mr. Sanchez’s
conviction fell within the scope of an “aggravated felony” and determined that “the
charging documents make clear that the respondent’s conviction is an aggravated
felony.” The IJ noted that the offered charging documents “clearly describe a
concealment and taking away of merchandise from a store.” On April 30, 2009, the
IJ found Mr. Sanchez to be statutorily ineligible for relief from removal due to his
aggravated felony conviction, see 8 U.S.C. § 1229b(a)(3), and ordered his removal.
Upon careful review of the transcript of Mr. Sanchez’s hearing before the IJ and
the written opinion of the IJ, two things are quite clear. First, Mr. Sanchez succeeded
in shifting to the government the burden of proof on whether violation of § 714.1
equates with commission of an aggravated felony. Second, the clear focus of the
hearing was on whether Mr. Sanchez could obtain cancellation of removal, which of
course depended on his showing that his violation of § 714.1 was not a commission
of an aggravated felony. Other than through his arguments against the government’s
view that his violation of § 714.1 equated with commission of an aggravated felony,
Mr. Sanchez made no attempt to meet his burden of proof. Nonetheless, it is clear that
the issue upon which Mr. Sanchez had the burden of proof was fully briefed and
litigated by the parties, and the IJ found the arguments of DHS more persuasive.

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The IJ’s written opinion noted that in order for Mr. Sanchez to obtain
cancellation of removal, he needed to establish that he had not been convicted of an
aggravated felony, and that he appeared not to have done so.
IV
Mr. Sanchez appealed to the BIA, arguing that he should not be precluded from
applying for cancellation of removal because DHS failed to prove that his 2004 Iowa
conviction for Theft in the Third Degree is a conviction for an aggravated felony. On
appeal, the BIA conducted a de novo review of Mr. Sanchez’s conviction for Theft in
the Third Degree and agreed with the IJ that the offense was an aggravated felony.
The BIA noted that “[t]he conviction record admitted into evidence by the
Immigration Judge in this matter as to the respondent’s 2004 Iowa conviction for theft
in the 3rd degree consists of certified copies of the judgment and sentencing order of
the Iowa criminal court, and the criminal complaints . . . submitted in that case.” The
BIA’s written opinion, labeled as “APPLICATIONS: Cancellation of removal,” stated
that the IJ found Mr. Sanchez removable “based on his admissions” and “statutorily
ineligible for relief.” The BIA thus concluded that Mr. Sanchez “failed to establish
his eligibility for any relief from removal, including cancellation of removal pursuant
to section 240A(a)(3) of the [Immigration and Nationality Act].”
V
Mr. Sanchez’s removability limits our review in this case. See 8 U.S.C.
§ 1252(a)(2)(C). However, we retain jurisdiction to review “constitutional claims or
questions of law raised upon a petition for review,” 8 U.S.C. § 1252(a)(2)(D),
including whether a crime is an aggravated felony. See Olmsted v. Holder, 588 F.3d
556, 558 (8th Cir. 2009) (citing Tostado v. Carlson, 481 F.3d 1012, 1014 (8th Cir.
2007)). We review a challenge to BIA’s legal determinations de novo and accord
“substantial deference to the BIA’s interpretation of the statutes and regulations it
administers.” Id.

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Mr. Sanchez does not challenge that under the Immigration and Nationality Act
he is subject to removal as an alien convicted of two or more crimes of moral turpitude
after admission and as an alien convicted of a controlled substance violation. See 8
U.S.C. §§ 1227(a)(2)(A)(ii); 1227 (a)(2)(B)(i). Because Mr. Sanchez concedes his
removability on these grounds, we need not consider the correctness of the BIA’s
determination that Mr. Sanchez is removable by reason of having committed an
aggravated felony. See Olmsted, 588 F.3d at 558. Our review is limited to Mr.
Sanchez’s challenge to the BIA’s determination that he is statutorily ineligible for
cancellation under 8 U.S.C. § 1229b. Nonetheless, Mr. Sanchez continues to argue
that he is eligible for cancellation of removal because DHS failed to carry its burden
to prove his conviction of an aggravated felony.
We find no statutory support for Mr. Sanchez’s argument that the burden of
proof rested on the government in this case to prove his conviction of an aggravated
felony when Mr. Sanchez is removable on other grounds. A removable alien
requesting relief from his removal has the burden of proof to establish that he is not
an aggravated felon and is therefore statutorily eligible for relief. See 8 U.S.C.
§ 1229a(c)(4)(A)(i). The applicable regulations require Mr. Sanchez to prove by a
preponderance of the evidence that the grounds for mandatory denial of his
application for relief do not apply. See 8 C.F.R. § 1240.8(d).
DHS initiated removal proceedings against Mr. Sanchez because he was
removable for three statutory reasons. He admitted his removability on two of those
reasons, but chose to contest whether he had committed an aggravated felony, at the
same time requesting relief by cancellation of removal. Having admitted his
removability, his only hope for the requested relief required him to prove that he had
not committed an aggravated felony. Mr. Sanchez ignored his burden of proof,
apparently thinking that if DHS could not meet its burden to prove commission of an
aggravated felony, the government’s failure would entitle him to relief on an issue for
which he, not DHS, bore the burden of proof. Mr. Sanchez’s tactical move before the

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IJ and the BIA earned him no more than a refocused assessment of whether his
violation of § 714.1 constitutes an aggravated felony. In the context of this case,
whether DHS proved that Mr. Sanchez’s violation of § 714.1 constitutes an
aggravated felony is irrelevant given Mr. Sanchez’s admitted removability grounds.
The only issue is whether Mr. Sanchez met his burden to gain entitlement to
cancellation of removal. Mr. Sanchez elected not to step forward on this issue, and
both the IJ and the BIA found him ineligible for cancellation of removal.
We reject Mr. Sanchez’s persistent attempts to force DHS to prove removability
based on the allegation that he committed an aggravated felony and thus elide the
material issue of whether he met his burden to show eligibility for cancellation of
removal. Because the BIA committed no error in finding Mr. Sanchez statutorily
ineligible for cancellation of removal, we deny his petition for review.
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