PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JAD GEORGE SALEM, 

Petitioner,

v.  No. 10-1078

ERIC H. HOLDER, JR., Attorney

General,

Respondent. 

On Petition for Review of an Order of

the Board of Immigration Appeals.

Argued: March 23, 2011

Decided: May 24, 2011

Before TRAXLER, Chief Judge, and KING and DIAZ,

Circuit Judges.

Affirmed by published opinion. Judge Diaz wrote the opinion,

in which Chief Judge Traxler and Judge King joined.

COUNSEL

ARGUED: Simon Yehuda Sandoval-Moshenberg, LICHTMAN & ELLIOT, PC, Washington, D.C., for Petitioner. Daniel I. Smulow, UNITED STATES DEPARTMENT OF

JUSTICE, Washington, D.C., for Respondent. ON BRIEF:

Thomas A. Elliot, Fabienne Chatain, Thomas H. Tousley,
ELLIOT & MAYOCK, Washington, D.C., for Petitioner.

Tony West, Assistant Attorney General, Civil Division, Mark

C. Walters, Senior Litigation Counsel, Office of Immigration

Litigation, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Respondent.

OPINION

DIAZ, Circuit Judge:

This appeal arises from entry of an order of removal under

section 237(a)(2)(A)(ii) of the Immigration and Nationality

Act ("INA"). The Board of Immigration Appeals ("BIA")

found petitioner removable and ineligible for cancellation of

removal. Petitioner concedes removability but contests the eligibility ruling. Because petitioner has not satisfied his statutorily prescribed burden of demonstrating eligibility, we

affirm. 

I.

A.

Petitioner Jad George Salem is a lawful permanent resident

of the United States. Leaving territory then belonging to Jordan, Salem legally entered this country in 1966. The land

from which he emigrated is now controlled by Israel and the

Palestinian Authority, and Salem asserts that he is stateless as

a result of this transfer of sovereignty.

Salem has amassed a substantial criminal record while in

the United States. Central to this appeal is Salem’s 2007 felony conviction for petit larceny (third subsequent) under Va.

Code Ann. § 18.2-96.1 Following entry of a guilty plea pursu1The statute provides that "[a]ny person who (1) Commits larceny from

the person of another of money or other thing of value of less than $5, or

(2) Commits simple larceny not from the person of another of goods and

chattels of the value of less than $200 . . . shall be deemed guilty of petit

larceny." Va. Code Ann. § 18.2-96. 

2 SALEM v. HOLDER
ant to North Carolina v. Alford, 400 U.S. 25 (1970)2

, Salem’s

sentence was enhanced in accordance with Va. Code Ann.

§ 18.2-104, which punishes a third or subsequent larceny

offense as a felony. 

B.

On January 3, 2008, the U.S. Department of Homeland

Security filed a Notice to Appear, initiating removal proceedings against Salem. The government alleged that Salem was

removable under two separate statutory provisions: 8 U.S.C.

§ 1227(a)(2)(A)(ii), for having been convicted of two or more

crimes involving moral turpitude; and 8 U.S.C.

§ 1227(a)(2)(A)(iii), for having been convicted of an aggravated felony under 8 U.S.C. § 1101(a)(43)(G), specifically "a

theft offense (including receipt of stolen property) or burglary

offense for which the term of imprisonment [is] at least one

year."

At a hearing before the immigration judge ("IJ"), Salem

conceded that he was removable for having been convicted of

two or more crimes involving moral turpitude. However, he

challenged the government’s contention that an aggravatedfelony conviction justified his removal, and the IJ agreed.

The IJ concluded that the Virginia larceny statute under

which Salem was convicted was divisible, in that it criminalized both wrongful and fraudulent takings of property, with

the latter offense not constituting an "aggravated felony"

under the INA. The IJ looked to our decision in Soliman v.

Gonzales, 419 F.3d 276 (4th Cir. 2005), to support this determination. There, we held that "theft" for purposes of the INA

does not include fraud, because fraud lacks the "without consent" element of the taking that is essential to a finding of

2The prosecutor’s proffer of the facts in support of the plea reflected

that Salem pulled into a gas station, pumped $23.01 worth of gasoline into

his car, and then drove away without paying for it. 

SALEM v. HOLDER 3
theft. Id. at 282–83. Drawing on this holding and looking to

the divisible nature of the statute, the IJ reasoned that production of some evidence was necessary to ascertain whether

Salem had been convicted of theft or merely fraud. According

to the IJ, the government’s proffer of the record of conviction

"establish[ed] the bare fact of conviction" but failed to reveal

whether the conviction was for fraud or theft. J.A. 20. As a

result, the IJ determined that the government had failed to

meet its burden of demonstrating by clear and convincing evidence that Salem had been convicted of an aggravated felony.

Although Salem conceded removability for having been

convicted of two or more crimes involving moral turpitude, he

sought relief in the form of cancellation of removal. The IJ

denied relief, ruling that Salem had failed to carry his burden

of showing by a preponderance of the evidence that he had

not been convicted of an aggravated felony. 

Salem appealed the IJ’s ineligibility ruling to the BIA,

which affirmed. Like the IJ, the BIA determined that Salem

had not satisfied his burden of showing that he was eligible

for cancellation of removal. Salem 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." As the BIA concluded, "any lingering uncertainty

that remains after consideration of the conviction record necessarily inures to the detriment of the party who bears the burden of proof." J.A. 7. Salem now appeals the BIA’s decision.3

II.

The INA employs a burden-shifting scheme in removal

proceedings. The government must establish removability in

the first instance. 8 U.S.C. § 1229a(c)(3)(A). It sustains its

3We have jurisdiction to hear appeals from BIA decisions that, as here,

present "constitutional claims or questions of law." See 8 U.S.C.

§ 1252(a)(2)(D). 

4 SALEM v. HOLDER
burden by presenting "clear and convincing evidence that, in

the case of an alien who has been admitted to the United

States, the alien is deportable."4Id.

But a removability finding does not end the matter. The

INA offers noncitizens several forms of relief to resist actual

removal, including cancellation of removal. A noncitizen is

eligible for cancellation of removal if he "(1) has been an

alien lawfully admitted for permanent residence for not less

than 5 years, (2) has resided in the United States continuously

for 7 years after having been admitted in any status, and (3)

has not been convicted of any aggravated felony." Id.

§ 1229b(a) (emphasis added). Even if a noncitizen demonstrates eligibility, the Attorney General retains discretion to

deny relief. Id. 

Important for purposes of this appeal, at the relief stage the

noncitizen bears the burden of establishing eligibility. 8

C.F.R. § 1240.8(d). Thus "[i]f 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." Id.

Congress in the REAL ID Act of 2005 affirmed the vitality

of this burden-shifting framework. Pub. L. No. 109-13, 119

Stat. 231. In particular, it sought to underscore that the noncitizen bears the burden at the relief stage. H.R. Rep. 109-72, at

294 (2005) (Conf. Rep.). Congress appended provisions to the

INA to accomplish this objective. Of great relevance here, a

new statutory section provided that "[a]n alien applying for

relief or protection from removal has the burden of proof to

establish that the alien [ ] satisfies the applicable eligibility

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

4The government met its burden in this case when Salem acknowledged

before the IJ that he was removable based on having been convicted of

two or more crimes involving moral turpitude. 

SALEM v. HOLDER 5
III.

We review legal questions de novo. Mbea v. Gonzales, 482

F.3d 276, 279 (4th Cir. 2007). Although we ordinarily accord

deference to the BIA’s interpretation of INA provisions, such

deference is unwarranted where, as here, the text is unambiguous. See INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999).

In this case, Salem’s 2007 Virginia state record of conviction for petit larceny encompasses the elements of an offense

that may qualify as an aggravated felony. Salem nevertheless

contends that a noncitizen satisfies his burden of proof to

demonstrate that he has not been convicted of an aggravated

felony by presenting an inconclusive, though complete, record

of conviction.

We find, however, that the BIA’s ruling denying Salem’s

request for relief from removal was faithful to the plain meaning of the statutory text governing eligibility for cancellation

of removal. Salem’s arguments to the contrary ignore Congress’s burden-shifting framework. Accordingly, we affirm. 

A.

Salem’s arguments suffer from a debilitating flaw: all gloss

over the relevant statutory provisions. Yet we cannot so easily

avoid the pellucid dictates of Congress, and application of its

mandate convinces us that Salem has not carried his burden

of demonstrating eligibility for discretionary relief.

Elementary principles of statutory construction command a

court to enforce the unambiguous terms of a duly enacted statute. As we recently wrote, our "inquiry [begins and] ends with

the plain language . . . unless the language is ambiguous."

Markovski v. Gonzales, 486 F.3d 108, 110 (4th Cir. 2007).

After concluding that Congress has clearly expressed its will

on the face of a statutory provision, courts must not superimpose outside constructs on the clear text. Conn. Nat’l Bank v.

6 SALEM v. HOLDER
Germain, 503 U.S. 249, 253–54 (1992). "[C]ourts must presume that a legislature says in a statute what it means and

means in a statute what it says there. When the words of a

statute are unambiguous, then, this first canon is also the last:

judicial inquiry is complete." Id. (citations and internal quotations omitted).

Applying these principles to interpretation of the INA’s

relief provisions, the Tenth Circuit has held that presentation

of an inconclusive record of conviction is insufficient to satisfy a noncitizen’s burden of proof to show eligibility for cancellation of removal. Garcia v. Holder, 584 F.3d 1288,

1289–90 (10th Cir. 2009). In Garcia, the petitioner had

pleaded guilty to assault and conceded removability. Id. at

1289. The petitioner and the government agreed that the

record of conviction was inconclusive as to whether the petitioner had been convicted of a crime involving moral turpitude, which would bar him from seeking discretionary relief.

Id. The parties disputed, however, which "side [may] claim[ ]

the benefit of the record’s ambiguity." Id.

The court held that, once the government had demonstrated

that the petitioner was removable, the INA shifted the burden

"to him to prove the absence of any impediment to discretionary relief." Id. at 1290. Accepting the petitioner’s argument

that he had sustained his burden by submitting an inconclusive record of conviction would, the Tenth Circuit declared,

"effectively nullif[y] the statutorily prescribed burden of

proof." Id. The court acknowledged that the petitioner was

"not to blame for the ambiguity surrounding his criminal conviction," but reasoned that lack of culpability "does not

relieve him of his obligation to prove eligibility for discretionary relief." Id.

Not all circuits have been persuaded by the logic underpinning Garcia. Both the Second and Ninth Circuits have held

that a noncitizen satisfies his burden of proving that he has

not been convicted of an aggravated felony—and thus

SALEM v. HOLDER 7
remains eligible for cancellation of removal—simply by proffering an inconclusive record of conviction. Martinez v.

Mukasey, 551 F.3d 113, 122 (2d Cir. 2008); Sandoval-Lua v.

Gonzales, 499 F.3d 1121, 1130 (9th Cir. 2007), authority

affirmed in Rosas-Castaneda v. Holder, 630 F.3d 881, 888

(9th Cir. 2011) (ruling that enactment of REAL ID Act does

not affect the holding of Sandoval-Lua). 

We conclude that the Tenth Circuit’s approach hews more

closely to the relevant statutory text. In removal proceedings

under the INA, Congress has commanded that the government

sustain the burden of establishing removability by clear and

convincing evidence. 8 U.S.C. § 1229a(c)(3)(A). But at the

relief stage, the clear text of the statute shifts the burden to the

removable noncitizen to establish that he "satisfies the applicable eligibility requirements." Id. § 1229a(c)(4)(A)(i). 

To satisfy his burden, an applicant for cancellation of

removal must, among other things, demonstrate by a preponderance of the evidence that he "has not been convicted of any

aggravated felony," id. § 1229b(a)(3). " ‘The burden of showing something by a preponderance of the evidence . . . simply

requires the trier of fact to believe that the existence of a fact

is more probable than its nonexistence.’ " United States v.

Manigan, 592 F.3d 621, 631 (4th Cir. 2010) (quoting Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension

Trust for S. Cal., 508 U.S. 602, 622 (1993)). 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. 

Applying this reasoning here, we conclude that Salem has

failed to satisfy his burden of proof to demonstrate that he is

eligible for cancellation of removal. The government unquestionably met its burden of establishing by clear and convinc8 SALEM v. HOLDER
ing evidence that Salem was removable for having been

convicted of two or more crimes involving moral turpitude,

and indeed Salem conceded the point. The burden then shifted

to Salem to demonstrate eligibility for cancellation of removal

by showing, among other things, that he had not been convicted of an aggravated felony. See 8 U.S.C.

§ 1229a(c)(4)(A)(i).

Salem also concedes that the only evidence he submitted to

the IJ to meet his burden—the 2007 Virginia record of conviction for petit larceny—is inconclusive as to whether he was

convicted of an aggravated felony. Thus viewing the totality

of evidence proffered by Salem to sustain his burden, it is

equally likely that he was convicted of an aggravated felony

as it is that he was not. Because Salem failed to meet his burden to show eligibility for discretionary relief, he is not entitled to cancellation of removal.

B.

To resist the plain import of the statutory text, Salem contends that the Supreme Court’s decision in CarachuriRosendo v. Holder, 130 S. Ct. 2577 (2010), controls this case

and compels reversal of the BIA’s decision. But Salem misapprehends the nature of the Court’s holding. 

The petitioner in Carachuri-Rosendo had in two separate

instances pleaded guilty in Texas to misdemeanor drug possession. Id. at 2583. The prosecutor could have charged the

petitioner with a felony in the second case but elected against

it. Id. at 2581–83. The government initiated removal proceedings based on the petitioner’s violation of a controlledsubstance law. Id. at 2583. The petitioner conceded removability but sought cancellation of removal. Id. In response, the

government contended that, because the petitioner could have

been prosecuted for a felony—even though he was not —he

had been convicted of an aggravated felony under the INA

SALEM v. HOLDER 9
and was thus barred from receiving discretionary relief. Id. at

2582.

Castigating the government’s "hypothetical approach" as

"ignor[ing] both the conviction . . . and the conduct actually

punished by the state offense," the Court held that "[t]he mere

possibility that the defendant’s conduct, coupled with facts

outside of the record of conviction, could have authorized a

felony conviction under federal law is insufficient." Id. at

2588–89. The Court underscored the infirmity of the government’s argument in that "it focuses on facts known to the

immigration court that could have but did not serve as the

basis for the state conviction and punishment." Id. at 2588. 

Read properly, Carachuri-Rosendo offers Salem no refuge.

The government here is not speaking in hypotheticals, and

both parties agree that Salem may actually have been "convicted" of an aggravated felony. On this record, the clear statutory mandate placed the burden on Salem to prove his

eligibility for discretionary relief from removal by showing

that it was more probable than not that his larceny conviction

was not an aggravated felony. Carachuri-Rosendo does not

hold otherwise. 

C.

Salem contends further that "the [BIA] impermissibly

imposed a level of the burden of proof upon [him] higher than

a preponderance of the evidence by requiring the petitioner to

produce evidence outside the record of conviction in contravention of the modified categorical approach." Pet’r’s Br. 15.

We disagree.

The Supreme Court has adopted the categorical approach in

the criminal-sentencing context to maintain fidelity to congressional intent, safeguard defendants’ Sixth Amendment

rights, and minimize a range of practical concerns. E.g., Taylor v. United States, 495 U.S. 575, 600–01 (1990); see also

10 SALEM v. HOLDER
United States v. Alston, 611 F.3d 219, 225 (4th Cir. 2010)

(enumerating twin aims of categorical approach as avoiding

collateral trials and protecting defendants’ Sixth Amendment

rights). 

The categorical approach "generally requires the trial court

to look only to the fact of conviction and the statutory definition of the prior offense" when determining whether a prior

conviction may be used to enhance a defendant’s sentence

under the Armed Career Criminal Act ("ACCA"), 18 U.S.C.

§ 924(e). Taylor, 495 U.S. at 602. Thus Taylor teaches that a

conviction under a state statute constitutes a conviction for

purposes of enhancement "if either its statutory definition

substantially corresponds to [the] ‘generic’ [crime], or the

charging paper and jury instructions actually required the jury

to find all the elements of [the] generic [crime] in order to

convict the defendant." Id.

Where the relevant conviction submitted by the government to enhance a defendant’s sentence is the result of a

guilty plea under a divisible state statute, the trial court "is

generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to

which the defendant assented." Shepard v. United States, 544

U.S. 13, 16 (2005). The inquiry centers on "whether the plea

had ‘necessarily’ rested on the fact identifying the [crime] as

generic." Id. at 21. Review of the record is restricted even further when ascertaining the nature of a conviction secured by

Alford plea. Alston, 611 F.3d at 226 ("[A] prosecutor’s proffer

of the factual basis for an Alford plea does not satisfy the

requirements of the modified categorical approach."). 

Two circuits have employed the categorical approach to

hold that presentation of an inconclusive record of conviction

satisfies a noncitizen’s burden to demonstrate that he has not

been convicted of an aggravated felony. Martinez, 551 F.3d

at 118–22; Sandoval-Lua, 499 F.3d at 1129–32. The Ninth

SALEM v. HOLDER 11
Circuit in Sandoval-Lua assumed that the categorical

approach should be used in the relief-from-removal context,

confining discussion of its reasoning to a footnote, 499 F.3d

at 1130 n.9. According to the Ninth Circuit, similarities

between the language used in the ACCA and the

INA—specifically, the requirement that a noncitizen have

been "convicted" of an aggravated felony, rather than

adjudged to have just "committed" such a crime—justified

extension of the categorical approach to relief-from-removal

proceedings. Id.

The Second Circuit in Martinez devoted significantly more

time to explaining the propriety of using the categorical

approach at the relief stage. Like the Ninth Circuit in

Sandoval-Lua, 499 F.3d at 1130 n.9, the Second Circuit

emphasized the use of the word "conviction" in the INA,

Martinez, 551 F.3d at 118 n.3. The bulk of the Second Circuit’s reasoning focused on practical difficulties presented by

failure to confine the relief inquiry in accordance with strictures of the categorical approach.

Positing that demanding more of the noncitizen "necessarily requires looking into evidence of [the noncitizen’s] actual

conduct," the Second Circuit concluded that "[i]t was the

desire to avoid such particular inquiries—whether designed to

show that a specific defendant was less or more culpable than

what his actual conviction required—that led us and the

Supreme Court to focus on categorical analysis." Id. at 121.

The court also expressed concern that " ‘the BIA and reviewing courts are ill-suited to readjudicate the basis of prior criminal convictions.’ " Id. at 122 (quoting Dulal-Whiteway v.

DHS, 501 F.3d 116, 132 (2d Cir. 2007)).

With respect for our colleagues on the Second and Ninth

Circuits, we believe that Martinez and Sandoval-Lua elide the

clear statutory language of the INA establishing the noncitizen’s burden in relief-from-removal proceedings. Moreover,

we are reluctant to extend application of the categorical

12 SALEM v. HOLDER
approach to the immigration relief context given the uniqueness of the INA’s burden-shifting regime. It bears repeating

that Salem was not in the dock facing criminal sanctions, but

instead sought the government’s largesse to avoid removal.

And while we have held that the categorical approach governs

the inquiry when determining removability in the first

instance, Soliman, 419 F.3d at 284, we have never considered

whether the evidentiary limits imposed by that approach

should apply when the burden shifts to the noncitizen to prove

his eligibility for cancellation of removal. As to that question,

we note that the Supreme Court has expressed some reservation about a wholesale adoption of the categorical approach in

the immigration context. See Nijhawan v. Holder, 129 S. Ct.

2294, 2303 (2009) (stating that the Taylor-Shepard line of

cases "developed [the evidentiary] list for a very different purpose, namely that of determining [in the sentencing context]

which statutory phrase (contained within a statutory provision

that covers several different generic crimes) covered a prior

conviction," and finding "nothing in prior law that so limits

the immigration court").5

In any event, Salem made no attempt to offer additional

evidence to the IJ beyond the record of conviction. Thus we

need not address today the proper scope and limit—if any—of

a noncitizen’s evidentiary presentation when seeking relief

from removal. 

5The Court in Carachuri-Rosendo stated that Nijhawan was limited to

"consider[ing] how to calculate the amount of loss once a conviction for

a particular category of aggravated felony has occurred." 130 S. Ct. at

2587 n.11. We also acknowledge that the majority in Carachuri-Rosendo

looked to the "record of conviction" to determine of which offense the

petitioner had actually been convicted, thereby rejecting the government’s

contention that the petitioner was ineligible for cancellation of removal

because he could have been charged with a federal felony for his prior

criminal conduct. Id. at 2587 n.12. That said, neither Carachuri-Rosendo

nor Nijhawan had cause to discuss the import of burden shifting at the

relief stage, a factor critical to our doubts about the applicability of the categorical approach in this context. 

SALEM v. HOLDER 13
We are satisfied that the BIA correctly applied the burdenshifting standard imposed by Congress when a petitioner

seeks cancellation of removal, and that it did so in a manner

consistent with the dictates of Taylor and Shepard. And like

the BIA, we are not free to ignore the results of that clear legislative mandate. The evidence before the BIA showed that

Salem had been convicted of an offense—petit larceny (third

subsequent)—that on its face satisfied the requirements of an

"aggravated felony" as defined by the INA. To the extent

Salem contended that he was convicted of an offense that was

not an aggravated felony because of the divisible nature of

Virginia’s petit larceny statute, the BIA did no more than

place the burden on him to produce "evidence encompassed

within the ‘record of conviction’—such as a charging instrument, a plea agreement, or a plea colloquy transcript—which

demonstrates that he pled guilty to, and was convicted of, an

offense falling outside the scope of the aggravated felony definition." J.A. 7 (emphasis added).

It is true enough that the relevant record failed to resolve

the ambiguity surrounding Salem’s conviction for petit larceny. For reasons we have explained, however, we decline to

accept Salem’s view that this ambiguity should be resolved in

his favor. Instead, we hold that where, as here, the relevant

evidence of conviction is in equipoise, a petitioner has not satisfied his statutory burden to prove eligibility for relief from

removal.6

6This uncontroversial principle finds support in our decision in United

States v. Haught, 387 Fed. App’x 327, 329 (4th Cir. 2010). The district

court in Haught determined that the defendant was not entitled to a sentencing adjustment for acceptance of responsibility, in part because results

of a drug test indicated that he may have used marijuana even after entering a guilty plea. Id. at 328. Similar to Salem’s argument here, the defendant contended "that the district court erred because the evidence

established that [his] marijuana use could have just as easily occurred

before the entry of his plea agreement as it could have after it," id. Given

that the defendant bears the burden of showing by a preponderance "that

he is entitled to an offense level adjustment for acceptance of responsibility," we concluded that Haught failed to sustain his burden because "the

evidence was in equipoise regarding the timing of his drug use." Id. at

328–29. 

14 SALEM v. HOLDER
D.

Salem argues finally that the BIA impermissibly relied on

the factual basis for his Alford plea in reaching its ruling. The

record demonstrates, however, that the BIA did not use these

facts to support its conclusion. It merely noted the obvious,

i.e., that the only evidence in the record bearing on the particulars of Salem’s 2007 conviction for petit larceny was not

helpful to him. 

The BIA acknowledged Salem’s contention that review of

the colloquy is impermissible because he entered an Alford

plea. It concluded, however, that the issue was irrelevant,

because "the fact remains that the respondent has produced no

evidence to establish that his violation . . . involved an element of Virginia larceny falling outside the theft aggravated

felony definition." J.A. 7. 

We agree with the BIA that, Alford plea or not, Salem did

not sustain his burden of showing by a preponderance of the

evidence that he has not been convicted of an aggravated felony. Accordingly, we affirm the BIA’s ruling that Salem is

ineligible for cancellation of removal.

AFFIRMED

SALEM v. HOLDER 15