In a recently released case, the 5th Circuit held that “possession with intent to deliver cocaine—is a felony under the Controlled Substance Act.” Vasquez-Martinez v. Holder, No. 07-60900 (5th Cir. April 2, 2009). As a result, the non-citizen’s conviction constituted an aggravated felony, rendering him ineligible for cancellation of removal.
The Court also held that, under 8 C.F.R. § 1240.8(d), “if the evidence indicates that one or more of the grounds for mandatory denial of the application for relief may apply, the alien shall have the burden of proving by a preponderance of the evidence that such grounds do not apply.”