Salem v. Holder, 2011 U.S. App. LEXIS 10425

Salem is a lawful permanent resident who entered the U.S. in 1966 from Jordan; sovereignty over his country of origin changed to Israel/Palestinian Authority, leading to a claim of statelessness.
Salem has a substantial U.S. criminal record, including a 2007 third-subsequent petit larceny conviction under Virginia law (Va. Code Ann. § 18.2-96) and an enhanced sentence under § 18.2-104.
The Virginia petit larceny statute is divisible, potentially covering theft or fraud, with only theft (and not fraud) possibly qualifying as an aggravated felony under INA.
In removal proceedings initiated January 3, 2008, the government alleged removability for two CIMTs and for an aggravated felony under 8 U.S.C. § 1101(a)(43)(G) based on the same conviction.
An IJ concluded the conviction record did not prove an aggravated felony due to its divisibility and lack of clear evidence; the BIA affirmed Salem’s ineligibility for cancellation of removal.
The Fourth Circuit affirmed, holding Salem failed to prove eligibility for cancellation of removal under the burden-shifting framework, and that the government had established removability; Carachuri-Rosendo does not govern relief-stage burdens, and inconclusive conviction evidence is insufficient to meet Salem’s burden.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Burden at relief stage	Salem contends inconclusive conviction suffices to show not an aggravated felony	Government bears removability burden and Salem bears burden to prove eligibility	Salem did not meet the eligibility burden; inconclusive record insufficient
Effect of Carachuri-Rosendo at relief stage	Carachuri-Rosendo controls and requires reversal	No controlling effect at relief stage; burden remains on Salem	Carachuri-Rosendo does not govern the relief-stage burden; denial affirmed
Application of burden-shifting framework	INA’s burden-shifting should allow inconclusive records to suffice	INA requires preponderance showing not convicted of an aggravated felony	INA requires noncitizen to prove not convicted of aggravated felony; inconclusive record fails
Role of divisible state statute and Alford plea	Ambiguity should be resolved in petitioner’s favor	BIA properly required evidence within record of conviction	Equivocal conviction evidence cannot satisfy burden; no relief
Use of evidentiary scope at relief stage	Should review Alford/plea evidence as relevant	Irrelevant to relief burden	Evidence insufficient to establish eligibility; relief denied

Soliman v. Gonzales, 419 F.3d 276 (4th Cir. 2005) (burden shifting and eligibility in relief-from-removal context)
Garcia v. Holder, 584 F.3d 1288 (10th Cir. 2009) (inconclusive record cannot meet eligibility burden under INA)
Martinez v. Mukasey, 551 F.3d 113 (2d Cir. 2008) (categorical approach not adopted for relief-from-removal context by all circuits)
Sandoval-Lua v. Gonzales, 499 F.3d 1121 (9th Cir. 2007) (advocates categorical approach at relief stage (discussed, rejected by court))
Rosas-Castaneda v. Holder, 630 F.3d 881 (9th Cir. 2011) (recognizes categorical approach limitations in relief context)
Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010) (clarifies reliance on conduct outside record; not controlling here)
Taylor v. United States, 495 U.S. 575 (1990) (categorical approach rationale in sentencing context)
Shepard v. United States, 544 U.S. 13 (2005) (defines evidentiary boundaries for prior conviction use)
Nijhawan v. Holder, 129 S. Ct. 2294 (2009) (limits wholesale adoption of categorical approach in immigration)
United States v. Haught, 387 F. App’x 327 (4th Cir. 2010) (illustrates evidentiary considerations in related context)
INS v. Aguirre-Aguirre, 526 U.S. 415 (1999) (interpretation of INA provisions in immigration proceedings)