The U.S. Court of Appeals for the Fourth Circuit recently held that an LPR failed to meet his burden of proof to show that he was not convicted of an aggravated felony because the record of conviction was inconclusive on this point. Salem v. Holder, No. 10-1078, slip op., 2011 WL 1998330 (4th Cir. May 24, 2011) (Traxler, King, and Diaz, J.). Judge Diaz wrote the panel’s decision.
This case involved an LPR who was convicted of petit larceny, Va. Code Ann. 18.2-96, among other offenses. He conceded removal for having been convicted of two or more crimes involving moral turpitude, INA § 237(a)(2)(A)(ii), but denied that his petit larceny offense constituted a theft or burglary type of aggravated felony, INA § 101(a)(43)(G). Salem, No. 10-1078, slip op. at 3.
The IJ determined that DHS did not meet its burden of showing that Salem’s petit larceny offense constituted an aggravated felony. Salem, No. 10-1078, slip op. at 3. The IJ also concluded that Salem failed to meet his burden of showing that he was eligible for Cancellation because he “presented no evidence to establish that his larceny conviction was for conduct falling outside the scope of the INA’s definition of an ‘aggravated felony.’” Salem, No. 10-1078, slip op. at 4. The BIA affirmed.
The Fourth Circuit began by noting that removal followed by relief from removal in the form of Cancellation involves a burden-shifting process. First, the government bears the burden of showing that the LPR is removable. After the government meets that burden, the burden shifts to the respondent to show that she is eligible for Cancellation. Salem, No. 10-1078, slip op. at 4-5. Indeed, INA § 240(c)(4)(A) and 8 C.F.R. § 1240.8(d), which the Fourth Circuit cites, provide that the burden is on the respondent to show eligibility for relief. Salem, No. 10-1078, slip op. at 5.
The court then turned to the core issue presented by this case: how much evidence must a respondent present to meet this burden? The Fourth Circuit noted that there exists a circuit split on this issue. The Tenth Circuit held in 2009 that an inconclusive record of conviction does not satisfy the respondent’s burden to show eligibility for Cancellation. Salem, No. 10-1078, slip op. at 7 (discussing Garcia v. Holder, 584 F.3d 1288, 1289-90 (10th Cir. 2009)).
In contrast, the Second and Ninth Circuits “have held that a noncitizen satisfies his burden of proving that he was not convicted of an aggravated felony—and thus remains eligible for cancellation of removal—simply by proffering an inconclusive record of conviction.’” Salem, No. 10-1078, slip op. at 7-8 (discussing Martinez v. Mukasey, 551 F.3d 113, 122 (2d Cir. 2008) and Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1130 (9th Cir. 2007)).
The Fourth Circuit left no doubt about which side of the circuit split it chose: “We conclude that the Tenth Circuit’s approach hews more closely to the relevant statutory text.” Salem, No. 10-1078, slip op. at 8. As the court explained, “Presentation of an inconclusive record of conviction is insufficient to meet a noncitizen’s burden of demonstrating eligibility, because it fails to establish that it is more likely than not that he was not convicted of an aggravated felony. In such a case, fidelity to the INA requires that the noncitizen, as the party bearing the burden of proof, suffer the detriment.” Salem, No. 10-1078, slip op. at 8.
Here, Salem submitted only his state record of conviction involving a divisible statute in an effort to meet his burden. Because the record of conviction was inconclusive, the court determined that he failed to meet his burden of showing that he was eligible for cancellation. Salem, No. 10-1078, slip op. at 8-9.
It remains unclear what exactly a respondent would need to do to satisfy the Cancellation eligibility burden. This case cautions attorneys that relying on the record of conviction alone is insufficient, at least in the Fourth Circuit.
Importantly, the Fourth Circuit expressed reluctance to extend the categorical approach to statutory interpretation to relief. Salem, No. 10-1078, slip op. at 12-13. Though the categorical approach is appropriate in determining removal, the court explained, “we are reluctant to extend application of the categorical approach to the immigration relief context given the uniqueness of the INA’s burden-shifting regime.” Salem, No. 10-1078, slip op. at 13.
Lastly, in what appears to be needless dicta, the court suggested that its holding is justified because relief from removal is less severe than criminal punishment. “It bears repeating,” the court wrote, “that Salem was not in the dock facing criminal sanctions, but instead sought the government’s largesse to avoid removal.” Salem, No. 10-1078, slip op. at 13.