Tristan Pablo-Rivera v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION JUL 05 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
TRISTAN CARL PABLO-RIVERA, a.k.a. No. 09-71880
Tristan C. Pablo,
Agency No. A040-497-052
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 26, 2012 **
Before: SCHROEDER, HAWKINS, and GOULD, Circuit Judges.
Tristan Carl Pablo-Rivera, a native and citizen of the Philippines, petitions
pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing
his appeal from an immigration judge’s (“IJ”) removal order. We have jurisdiction
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
under 8 U.S.C. § 1252. We review de novo questions of law, Ngaeth v. Mukasey,
545 F.3d 796, 800 (9th Cir. 2008), and we deny the petition for review.
The BIA correctly determined that Pablo-Rivera’s convictions under
California Penal Code § 459 are aggravated felony attempted theft offenses where
the record of conviction establishes that Pablo-Rivera pled guilty on both occasions
to entering a locked vehicle with the intent to commit theft. See id. at 802 (“[A]
conviction for entering a locked vehicle with the intent to commit theft constitutes
an attempted theft offense for purposes of the aggravated felony definition.”); see
also Ramirez-Villalpando v. Holder, 645 F.3d 1035, 1040-41 (9th Cir. 2011)
(using an abstract of judgment in combination with a charging document to
establish removability). In light of this determination, the BIA correctly concluded
that Pablo-Rivera is removable under 8 U.S.C. § 1227(a)(2)(A)(iii), and is
statutorily ineligible for cancellation of removal under 8 U.S.C. § 1229b(a)(3).
Contrary to Pablo-Rivera’s contentions, the IJ did not shift the burden of
proof to him, and the agency did not rely on his hearing testimony in concluding
that his convictions constitute removable offenses.
We do not entertain Pablo-Rivera’s Motion to Reopen and Vacate Removal,
filed on June 29, 2012. Any request for reopening should be filed with the BIA.
PETITION FOR REVIEW DENIED.
2 09-71880