Norma Aleman-Coreas v. Eric Holder, Jr. , 457 F. App'x 307 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1639
NORMA ELIZABETH ALEMAN-COREAS,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: November 22, 2011 Decided: December 13, 2011
Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Petition denied by unpublished per curiam opinion.
Marc Seguinót, SEGUINÓT & ASSOCIATES, P.C., Dunn Loring,
Virginia, for Petitioner. Tony West, Assistant Attorney
General, Ada E. Bosque, Senior Litigation Counsel, Mona Maria
Yousif, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Norma Elizabeth Aleman-Coreas, a native and citizen of
El Salvador, petitions for review of an order of the Board of
Immigration Appeals (“Board”) dismissing her appeal from the
immigration judge’s decision finding her removable as charged
and denying her application for cancellation of removal.
On appeal, Aleman-Coreas does not dispute the agency’s
finding that, based on her 1996 Virginia conviction for petit
larceny, she is removable as an alien, who within five years of
admission, was convicted of a crime involving moral turpitude
for which a sentence of one year or longer may be imposed. See
8 U.S.C. § 1227(a)(2)(A)(i) (2006). Accordingly, the issue is
now waived, see United States v. Jones, 308 F.3d 425, 427 n.1
(4th Cir. 2002), and we uphold the finding of removability on
this ground.
We also uphold the agency’s finding that Aleman-Coreas
failed to establish her eligibility for cancellation of removal.
To establish such eligibility, Aleman-Coreas must demonstrate
that she (1) has been a lawful permanent resident for not less
than five years; (2) has continuously resided in the United
States for seven years; and (3) “has not been convicted of any
aggravated felony.” 8 U.S.C. § 1229b(a) (2006); see Salem v.
Holder, 647 F.3d 111, 114-15 (4th Cir.), petition for cert.
filed, 80 U.S.L.W. 3098 (Aug. 17, 2011).
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The record establishes that Aleman-Coreas has been
twice convicted of assault and battery in Virginia, in violation
of Va. Code Ann. § 18.2-57.2 (LexisNexis 2009), a statute that
criminalizes both violent and non-violent conduct. See 8 U.S.C.
§ 1101(a)(43)(F) (2006) (defining aggravated felony as including
“a crime of violence . . . for which the term of imprisonment
[is] at least one year”); United States v. White, 606 F.3d 144(4th Cir. 2010) (holding that Va. Code Ann. § 18.2-57.2 does not
contain, as an element, the use of physical force, and therefore
court must apply modified categorical approach to discern if
defendant committed crime of violence). In light of “the
divisible nature” of Virginia’s assault and battery statute, the
agency properly placed the burden on Aleman-Coreas “to produce
evidence encompassed within the record of conviction — such as a
charging document, a plea agreement, or a plea colloquy
transcript — which demonstrates that [s]he pled guilty to, and
was convicted of, an offense falling outside the scope of the
aggravated felony definition.” Salem, 647 F.3d at 119-20(internal quotations omitted). We have held that “where . . .
the relevant evidence of conviction is in equipoise, a
petitioner has not satisfied h[er] statutory burden to provide
eligibility for relief from removal.” Id. at 120.
Accordingly, we deny the petition for review. We
dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
PETITION DENIED
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