Kenneth Francis v. Eric Holder, Jr. , 556 F. App'x 343 ( 2014 )

Case: 13-60471 Document: 00512540421 Page: 1 Date Filed: 02/21/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-60471 February 21, 2014
Summary Calendar
Lyle W. Cayce
Clerk
KENNETH C. FRANCIS,
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A037 331 759
Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
Petitioner Kenneth C. Francis, a citizen of Jamaica and a lawful
permanent resident of the United States, was convicted of two crimes involving
moral turpitude not arising out of a single scheme. He conceded removability
under 8 U.S.C. § 1227(a)(2)(A)(ii) and applied for cancellation of removal under
8 U.S.C. § 1229b(a). The immigration judge (“IJ”)determined that Francis was
ineligible for cancellation of removal because he had failed to refute evidence
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 13-60471
in the record indicating that he had aggravated felony convictions for access
device fraud and conspiracy to commit access device fraud, in violation of 18
U.S.C. § 1029(a)(5) and (b)(2), which had resulted in restitution of $285,439.
See 8 U.S.C. 1101(a)(43)(M)(i), (U). Francis now petitions for review of the
order of the Board of Immigration Appeals (BIA) dismissing his appeal of the
IJ’s adverse decision.
Francis challenges the BIA’s ruling that, to qualify for cancellation of
removal, he was required to provide documentation showing that he was not
in fact convicted of access device fraud or conspiracy or that the offenses did
not constitute aggravated felonies. He contends that the government had the
initial burden to produce evidence indicating that the aggravated felony bar
might apply. Francis also asserts that any records submitted by the
government were inconclusive; although the government had argued that
Francis was removable on the basis of these aggravated felony convictions, the
IJ had found the evidence insufficient to establish removability because the
submitted judgment and presentence report were not certified. See 8 U.S.C. §
1229a(c)(3)(B). He argues that, in light of the inconclusive record, he has
satisfied his burden of proving that he was not convicted of an aggravated
felony.
To qualify for cancellation of removal, an alien must establish that he
has not been convicted of an aggravated felony. § 1229b(a)(3). Because the
record contained evidence indicating that the aggravated felony bar may apply,
Francis was required to show by a preponderance of the evidence “that he is
not an aggravated felon and is therefore statutorily eligible for relief.”
Vasquez-Martinez v. Holder, 564 F.3d 712, 715 (5th Cir. 2009); § 1229a(c)(4)(A);
8 C.F.R. § 1240.8(d). The government had no burden to show that the offense
was an aggravated felony. See Vasquez-Martinez, 564 F.3d at 716. Although
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No. 13-60471
the final judgment submitted by the government was insufficient to establish
that Francis was removable, it did constitute record evidence indicating the
existence of an aggravated felony. See Vasquez-Martinez, 564 F.3d at 714-15
(finding that judgment containing an error was insufficient to establish a
controlled substance violation for removability purposes but that it constituted
“some evidence” of ineligibility for cancellation of removal). The BIA did not
err in dismissing Francis’s appeal, so we deny his petition for review.
PETITION DENIED.
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