United States Court of Appeals 

For the First Circuit 

No. 14-2042 

JOSE RICARDO PERALTA SAUCEDA, 

Petitioner, 

v. 

LORETTA E. LYNCH,*

Attorney General of the United States, 

Respondent. 

PETITION FOR REVIEW OF AN ORDER OF 

THE BOARD OF IMMIGRATION APPEALS 

Before 

Torruella, Lynch, Kayatta, 

Circuit Judges. 

 Carlos E. Estrada and Estrada Law Office, on brief for 

petitioner. 

 James A. Hurley, Attorney, Office of Immigration Litigation, 

U.S. Department of Justice, Civil Division, Benjamin C. Mizer, 

Principal Deputy Assistant Attorney General, Civil Division, and 

Stephen J. Flynn, Assistant Director, Office of Immigration 

Litigation, on brief for respondent. 

 * Pursuant to Fed. R. App. P. 43(c)(2), Attorney General 

Loretta E. Lynch has been substituted for former Attorney General 

Eric H. Holder, Jr., as the respondent. 
October 14, 2015 
- 3 - 

LYNCH, Circuit Judge. Jose Ricardo Peralta Sauceda 

petitions for review of the Board of Immigration Appeals' (BIA) 

affirmance of an immigration judge's (IJ) decision that he was not 

eligible for cancellation of removal because he failed to meet his 

burden of proving by a preponderance of the evidence that he had 

not previously been convicted of a "crime of domestic violence." 

Peralta Sauceda concedes that he cannot provide competent evidence 

that would compel a finding that he was not convicted of a "crime 

of domestic violence." We deny his petition for review, consistent 

with the views of five other circuits. 

I. 

 Peralta Sauceda, a native and citizen of Honduras, 

entered the United States illegally on December 23, 1993. On 

December 11, 2006, Peralta Sauceda pleaded guilty to Count One of 

a criminal complaint that charged him with assaulting his wife in 

violation of Me. Rev. Stat. Ann. tit. 17-A, § 207(1)(A), which 

states that "[a] person is guilty of assault if: A. The person 

intentionally, knowingly or recklessly causes bodily injury or 

offensive physical contact to another person." On August 29, 2007, 

the Department of Homeland Security served Peralta Sauceda with a 

Notice to Appear, charging him with removability as an alien 

present without being admitted or paroled. See 8 U.S.C. 

§ 1182(a)(6)(A)(i). At a preliminary hearing, he conceded 

removability and requested cancellation of removal. See 8 U.S.C. 
- 4 - 

§ 1229b(b)(1). At the July 29, 2009 merits hearing, the question 

was raised whether his assault conviction qualified as a "crime of 

domestic violence" under 8 U.S.C. § 1227(a)(2)(E)(i), thereby 

disqualifying him from eligibility for cancellation of removal. 

See 8 U.S.C. § 1229b(b)(1)(C). 

On September 19, 2013, after a series of appeals to and 

remands from the BIA concerning the applicability of the modified 

categorical approach to the Maine assault statute, the IJ issued 

her final order pretermitting Peralta Sauceda's application for 

cancellation of removal. In performing the modified categorical 

approach analysis, the IJ found that the record as presented showed 

that Peralta Sauceda had pleaded guilty to committing a domestic 

violence crime, but that the record was inconclusive as to whether 

he was convicted under the "bodily injury" prong or the "offensive 

physical contact" prong of the Maine statute. As the BIA had held, 

only a conviction under the "bodily injury" prong would qualify as 

a federal "crime of domestic violence" and render him ineligible 

for cancellation of removal. 

The IJ had previously issued an order to the parties on 

July 23, 2013, granting them additional time to provide "any other 

part of the record of conviction" that could clarify under which 

prong he was convicted. Peralta Sauceda informed the IJ on August 

1, 2013 that he was unable to secure any other documents because 
- 5 - 

the Superior Court of the county where he was convicted does not, 

in misdemeanor cases, maintain copies of the documents he needed. 

In light of this admission, the IJ held in her final 

order that Peralta Sauceda was not eligible for cancellation of 

removal because he had failed to meet his burden of proving by a 

preponderance of the evidence that his 2006 assault conviction was 

not a "crime of domestic violence." The BIA affirmed. This 

petition for review followed. 

II. 

 Since "the BIA adopted and affirmed the IJ's ruling, and 

discussed some of the bases for the IJ's opinion, we review both 

the BIA's and IJ's opinions." Idy v. Holder, 674 F.3d 111, 117 

(1st Cir. 2012). We review legal conclusions de novo, while 

affording "appropriate deference to the BIA's interpretation of 

immigration statutes." Ruci v. Holder, 741 F.3d 239, 242 (1st 

Cir. 2013). 

In removal proceedings, the statute provides that "[a]n 

alien applying for relief or protection from removal has the burden 

of proof to establish that the alien -- (i) satisfies the 

applicable eligibility requirements." 8 U.S.C. § 1229a(c)(4)(A). 

The applicable regulations similarly state: 

The respondent shall have the burden of 

establishing that he or she is eligible for 

any requested benefit or privilege and that it 

should be granted in the exercise of 

discretion. If the evidence indicates that 
- 6 - 

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. 

8 C.F.R. § 1240.8(d). 

By requesting cancellation of removal, Peralta Sauceda 

undertook the burden of proving his eligibility for relief. 

Peralta Sauceda does not challenge the IJ's determination that 

there was enough evidence in the record to place upon him the 

burden of proving that he had not been convicted of a "crime of 

domestic violence." In order to establish eligibility for relief, 

Peralta Sauceda must prove by a preponderance of the evidence that 

he was not convicted under the "bodily injury" prong of the Maine 

statute. 

Peralta Sauceda states that the Maine courts do not 

maintain such records as would establish under which prong of the 

Maine statute he was convicted. His appeal essentially boils down 

to the argument that he made good-faith efforts to find this 

evidence, that its unavailability is not his fault, and so the 

IJ's order is not fair. But that is not how a burden of proof 

works. It is hornbook law that the allocation of the burden of 

proof determines "which of two contending litigants loses when 

there is no evidence on a question or when the answer is simply 

too difficult to find." Burden of Proof, Black's Law Dictionary 

(10th ed. 2014). 
- 7 - 

Congress spoke clearly when it chose to place the "burden 

of proof" on the alien requesting cancellation of removal. After 

all, cancellation of removal is not a context in which the alien 

is "in the dock facing criminal sanctions," but is instead one in 

which the alien seeks "the government's largesse to avoid removal." 

Salem v. Holder, 647 F.3d 111, 119 (4th Cir. 2011). We join five 

other circuits who have held that an inconclusive record cannot 

satisfy an alien's burden of proving eligibility for discretionary 

relief. See Syblis v. Att'y Gen. of the U.S., 763 F.3d 348, 355–

57 (3d Cir. 2014); Sanchez v. Holder, 757 F.3d 712, 720 & n.6 (7th 

Cir. 2014); Young v. Holder, 697 F.3d 976, 988–90 (9th Cir. 2012) 

(en banc); Salem, 647 F.3d at 116–20; Garcia v. Holder, 584 F.3d 

1288, 1289–90 (10th Cir. 2009). But see Martinez v. Mukasey, 551 

F.3d 113, 121–22 (2d Cir. 2008). 

III. 

 Peralta Sauceda also argues that it was improper for the 

IJ not to consider the fact that his conviction was under a general 

assault statute even though Maine now has a separate domestic 

violence statute. But as Peralta Sauceda admits, the Maine 

domestic violence statute was not passed until after he tendered 

his guilty plea, making this argument irrelevant. His appeal to 

Matter of Silva-Trevino, 26 I. & N. Dec. 550 (A.G. 2015), is 

similarly misguided because Silva-Trevino concerned the 
- 8 - 

determination of whether an offense qualifies as a crime involving 

moral turpitude, not a crime of domestic violence. 

IV. 

 The petition for review is denied.