### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCUIT

No. 11-60533 Summary Calendar
GUSTAVO ADOLFO TAPIA, also known as Gustavo A. Tapia, also known as AdolfoTapia, also known as Adlopho Tappia, also known as Gustavo Tapia, Petitioner

v. ERIC H. HOLDER, U.S. ATTORNEY GENERAL, Respondent

Petition for Review of an Order of the Board of Immigration Appeals BIA No. A043 326 573

Before JONES, Chief Judge, and SOUTHWICK and HAYNES, Circuit Judges. PER CURIAM: * Gustavo Adolfo Tapia, a n ativ e and citizen of the Dominican Republic, petitions for review of the dismissal by the Board of Immigration Appeals (BIA) of his appeal of th e d e ni al of his application for cancellation of removal. See 8 U.S.C. § 1229b(a). To obtain cancellation of removal, the alien must not have been convicted of any aggravated felony. § 1229b(a)(3). The Immigration Judge found that Tapia’s two New York convictions for the sale o f a controlled U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Sep tem ber 6 , 20 12 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the court hasd ete rm inedthat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-60533 Document: 00511977433 Page: 1 Date Filed: 09/06/2012No. 11-60533

substance in the fourth degree, see New York Penal Law § 220.34, we r e f or aggrav ated felonies. The BIA dismissed Tapia’s appeal because he failed to carry his burden of proving that he was not convicted of an aggravated felony. See 8 U.S.C. § 1229a(c)(4)(A)(i); 8 C.F.R. § 1208.4. Tapia argues that the record fails to establish that his New York drug convictions are aggravat e d f elonies; therefore, he argues, he is eligible for cancellation of removal. “The BIA’s determination that an alien is ineligible for discretionary relief in the form of cancellation of removal is a question o f law that we review de novo, deferring to the BIA’s interpretation of the statutes a n d regulations it administers.” Vasquez-Martinez v. Holder , 564 F.3d 712, 715 (5th Cir. 200 9). Tapia was ordered removed on two bases: (1) under INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i) as an alie n c o nvi cted of violating “any law or regulation of a State

. . . relating to a controlled sub stance,” and (2) under § 237(a)(2)(A)(iii), 8 U.S.C. § 1227( a) ( 2 )(A)(iii) as an aggravated felon. Tapia conceded removability on the first charge. Once Tapia’s removability was establi shed, he had the burden of establishing that he was eligible for cancellation of removal. § 1229a(c)(4)(A)(i);

see Vasquez-Martinez , 564 F.3d at 715-16. Since “the evidence indicate[d] that

one or more of the grounds for mandatory denial of the application for relief may apply” (i.e., conviction of an aggravated felony), he had the burden of proving by

a preponderance of the evidence that such grounds did not apply. § 1240.8(d);

see Moncrieffe v. Holder , 662 F.3d at 392 (5th Cir. 2011) cert. granted, 132 S. Ct. 1857 (2012); Vasquez-Martinez , 564 F.3d at 715-16. Tap i a p re s ented no evidence before the IJ or the BIA to show that he had not been convicted of an aggravated felony, and he points to no such evidence here. The BIA did not err in dismissing his appeal. PETITION FOR REVIEW DENIED.

2 Case: 11-60533 Document: 00511977433 Page: 2 Date Filed: 09/06/2012