IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH 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 native and citizen of the Dominican Republic,

petitions for review of the dismissal by the Board of Immigration Appeals (BIA)

of his appeal of the denial 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 of a controlled

United States Court of Appeals

Fifth Circuit

F I L E D

September 6, 2012

Lyle W. Cayce

Clerk

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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

substance in the fourth degree, see New York Penal Law § 220.34, were for

aggravated 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 aggravated felonies;

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 of law that we review de

novo, deferring to the BIA’s interpretation of the statutes and regulations it

administers.” Vasquez-Martinez v. Holder, 564 F.3d 712, 715 (5th Cir. 2009).

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 alien convicted of violating “any law or

regulation of a State . . . relating to a controlled substance,” 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 established, 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. Tapia presented 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