PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS.
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.
Before Torruella, Lynch, Kayatta, Circuit Judges.
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.
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. § 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 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 ...