Jorge Cuevas-Moreno v. ERIC H. HOLDER, Jr., Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JORGE CUEVAS-MORENO,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 10-71374
Agency No. A035-237-425
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 15, 2012.
Submission Vacated April 16, 2013.
Resubmitted for Decision September 4, 2013.
San Francisco, California
Before: HAWKINS, M. SMITH, and MURGUIA, Circuit Judges.
Jorge Cuevas-Moreno challenges an order of the Board of Immigration
Appeals affirming the Immigration Judge’s determination that he was convicted of
an aggravated felony and is therefore ineligible for cancellation of removal.
FILED
SEP 11 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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Cuevas-Moreno was convicted of a crime of domestic violence that renders him
removable, but because he was only sentenced to 31 days, that crime is not an
aggravated felony, which would bar his application for cancellation of removal.
See 8 U.S.C. § 1101(a)(43)(F) (crime of violence is an aggravated felony only if
the term of imprisonment is at least one year).
In addition the record contains an abstract of judgment indicating that
Cuevas-Moreno was also convicted of violating California Penal Code § 487(a),
which criminalizes the taking of “money, labor, or real or personal property.” That
statute is overbroad, which means that some convictions under the statute are
aggravated felonies, but others are not. Ramirez-Villalpando v. Holder, 645 F.3d
1035, 1039 (9th Cir. 2011). The parties dispute whether, under the modified
categorical approach, we may consider the criminal complaint that indicates
Cuevas-Moreno was charged with stealing personal property, conduct that would
constitute an aggravated felony category. See id. at 1039 (stating that § 487(a) is
overbroad because the theft of labor is not an aggravated felony).
We need not resolve this dispute, however, because even without
considering the complaint, “the evidence indicates that one or more of the grounds
for mandatory denial of the application for relief may apply” and therefore, to
obtain cancellation of removal Cuevas-Moreno “[has] the burden of proving by a
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preponderance of the evidence that such grounds do not apply.” 8 C.F.R. §
1240.8(d); Young v. Holder, 697 F.3d 976, 988–990 (9th Cir. 2012) (en banc).
Cuevas-Moreno argues that the record does not “conclusively establish” that he
was convicted of an aggravated felony. Even if that is true, the record is at best
inconclusive and Cuevas-Moreno “cannot carry the burden of demonstrating
eligibility for cancellation of removal by establishing an inconclusive record of
conviction.” Young, 697 F.3d at 990.
PETITION DENIED.
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