OPINION OF THE COURT
This appeal arises from the entry of an order of removal under 8 U.S.C. § 1227(a)(1)(B).
I. Facts & Procedural Background
Petitioner Damian A. Syblis, a native and citizen of Jamaica, entered the United States on May 9, 2000 as a nonimmigrant visitor. Pursuant to his visa status, Syblis was authorized to remain in the United States for a temporary period not to exceed three months. Despite this limitation, he remained in the United States beyond three months without seeking additional authorization.
Syblis’s contact with the law began on July 31, 2004, when he was charged with possession of marijuana, in violation of Va. Code Ann. § 18.2-250.1. The charges were later amended, for unknown reasons, to possession of drug paraphernalia, in violation of Va.Code Ann. § 54.1-3466. He was convicted on November 30, 2004 of the amended charge. On March 27, 2008, in a matter unrelated to the 2004 incident, Syb-lis was convicted of possession of marijuana, in violation of Va.Code Ann. § 18.2-250.1.
Thereafter, on July 19, 2010, the United States Department of Homeland Security initiated removal proceedings against Syblis, charging him with removability pursuant to 8 U.S.C. § 1227(a)(1)(B) for overstaying his visa authorization, and pursuant to 8 U.S.C. § 1227(a)(2)(B)(i)
On June 16, 2011, the IJ considered Syblis’s controlled substances arguments to determine his eligibility under 8 U.S.C. § 1182(h). The IJ concluded that both of Syblis’s convictions — for possession of drug paraphernalia and possession of marijuana — related to “controlled substances” for purposes of 8 U.S.C. § 1182(a)(2)(A)(i)(II).
Syblis appealed the IJ’s determination of ineligibility to the BIA. Because Syblis conceded removability under 8 U.S.C. § 1227(a)(1)(b), the BIA declined to reach the merits on his challenge to the IJ’s decision to sustain the removal charge concerning 8 U.S.C. § 1227(a)(2)(B)®. In analyzing the IJ’s denial of Syblis’s request for relief, the BIA first observed that Syb-lis had the burden of demonstrating his eligibility for relief under the waiver statute. It then acknowledged that Va.Code Ann. § 54.1-3466 punished paraphernalia offenses potentially related to controlled substances included within the Controlled Substances Act (the “CSA”), such as methamphetamine, cocaine, heroin, and opium-substances, and those not included within the CSA, such as those recognized by the official United States Pharmacopoeia National Formulary. The BIA based its ultimate conclusion on the fact that Syblis had not “meaningfully demonstrated” that his conviction fell into the latter category. (App. at 5). Because Syblis’s convictions — both the paraphernalia offense and the marijuana offense — appeared to relate to controlled substances, and Syblis had not made any specific proffer otherwise, the BIA affirmed the IJ’s conclusion that he was statutorily ineligible for a waiver of inadmissibility under 8 U.S.C. § 1182(h).
This timely petition for review followed.
II. Jurisdiction & Standard of Review
The BIA had jurisdiction to review the IJ’s order of removal under 8 C.F.R. § 1003.1(b)(3). This Court’s jurisdiction arises under 8 U.S.C. § 1252(a).
III. Analysis
“An alien applying for relief or protection from removal has the burden of proof to establish that the alien [ ] satisfies the applicable eligibility requirements.” 8 U.S.C. § 1229a(c)(4)(A)(i); see Jean-Louis v. Att’y Gen.,
As previously noted, § 1182(a)(2)(A)(i)(II) renders inadmissible “any alien convicted of ... a violation of ... any law or regulation ... relating to a controlled substance (as defined in section 802 of Title 21).” 8 U.S.C. § 1182(a)(2)(A)(i)(II). And § 1182(h) provides for a waiver of that finding of inadmissibility, where the alien has been convicted of only “a single offense of simple possession of 30 grams or less of marijuana.” 8 U.S.C. § 1182(h) (emphasis added). Here, Syblis has two convictions that potentially relate to controlled substances under § 1182(a)(2)(A)(i)(II) — his conviction for possession of drug paraphernalia under Va.Code Ann. § 54.1-3466 and his conviction for possession of marijuana under Va. Code Ann. § 18.2-250.1. He has chosen to argue that Va.Code Ann. § 54.1-3466 does not relate to controlled substances under § 1182(a)(2)(A)(i)(II). If Syblis is correct, he may be eligible for a waiver of inadmissibility under § 1182(h) because he will have only been convicted of one law relating to a control led substance.
We are thus faced with the question of whether Syblis has adequately met his burden of demonstrating his eligibility for relief. To meet this burden, Syblis must affirmatively demonstrate either: (1) that Va.Code Ann. § 54.1-3466 is not a law relating to a controlled substance; or (2) that the controlled substance involved in his conviction was not defined by federal law. See Rojas v. Attorney General,
A.
We begin with a discussion of whether Va.Code Ann. § 54.1-3466 relates to “controlled substances” for purposes of 8 U.S.C. § 1182(a)(2)(A)(i)(II). In Rojas, we acknowledged “a parallel but distinct line of cases ... developed to address situations in which the relevant federal conduct is presented not as a generic, unitary crime but as a conviction ‘relating to’ other crimes or objects.”
In order to determine whether Va.Code Ann. § 54.1-3466 relates to controlled substances for purposes of § 1182(a)(2)(A)(i)(II), we must, therefore, “survey the interrelationship between” Va. Code Ann. § 54.1-3466 and federally-defined controlled substances, “and apply the phrase relating to broadly, seeking a logical or causal connection.” Denis,
The statute specifically states:
... [I]t shall be a misdemeanor for any person to possess or distribute controlled paraphernalia which shall mean a hypodermic syringe, needle or other instrument or implement or combination thereof adapted for the administration of controlled dangerous substances by hypodermic injections.... under circumstances which reasonably indicate an intention to use such controlled paraphernalia for purposes of illegally administering any controlled drug, or gelatin capsules, glassine envelopes or any other container suitable for the packaging of individual quantities of controlled drugs in sufficient quantity to and under circumstances which reasonably indicate an intention to use any such item for the illegal manufacture, distribution, or dispensing of any such controlled drug.
Va.Code Ann. tit. 54.1-3466 (emphasis added). The statute defines “controlled substance” as any “drug, substance, or immediate precursor in Schedules I through VIlisting, for example, methamphetamine, cocaine, heroin, peyote, and opium-substances. See Va.Code Ann, tit. 54.1-3401, §§ 3446-55. The substances listed in Schedules I through VI are covered, at least in part, by the CSA.
Syblis argues, however, that the “underlying element” of Va.Code Ann. § 54.1-3466 refers to only the use of controlled drugs and not controlled substances. (Petitioner’s Opening Br. at 9). It is on this distinction that Syblis bases his argument that Va.Code Ann. § 54.1-3466 does not relate to controlled substances. He directs our attention to the fact that the term “drug” is defined separately in the statute as:
(i) articles or substances recognized in the official United States Pharmacopoeia National Formulary or official Homeopathic Pharmacopoeia of the United States, or any supplement to any of them; (ii) articles or substances intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or animals; (iii) articles or substances, other than food, intended to affect the structure or any function of the body of man or animals; (iv) articles or substances intended for use as a component of any article specified in clause (i), (ii), or (iii); or (v) a biological product.
Va.Code Ann. tit. 54.1 — 3401. He argues that this definition of the term “drug” mirrors the language of a statute we examined in Borrome v. Attorney General,
We decline to dismiss Borrome so quickly, however, as that case brings to the forefront major flaws in Syblis’s argument. Despite Syblis’s contentions, the fact that the remaining portion of Va.Code Ann. § 54.1-3466 refers to “drugs” bears little on our analysis as to whether the statute “ ‘stand[s] in relation,’ ‘pertainfs],’ has ‘bearing of concern,’ or ‘refer[s]’ to” controlled substances. Rojas,
*355 [A] law need not require for its violation the actual involvement of a controlled substance in order to relate to a controlled substance. If Congress wanted a one-to-one correspondence between the [laws of conviction] and the federal CSA, it would have used a word like “involving” instead of “relating to”.... In this vein, the BIA and several of our sister Courts of Appeals have held that a law prohibiting the possession or use of drug paraphernalia is a law relating to a controlled substance.
The basis for our conclusion in Borrome further demonstrates the error in Syblis’s arguments. We concluded “that the FDCA prohibits ‘countless activities that are completely unconnected to controlled substances’ ” and that “the connection between the substances listed in the CSA and those at issue in the FDCA was ‘not at all evident from the face of [the statute].’ ” Rojas,
B.
Because Va.Code Ann. § 54.1-3466 relates to controlled substances for purposes of § 1182(a)(2)(A)(i)(II), Syblis must prove that the substance involved in his conviction was not defined by federal law in order to be eligible for relief. Rojas,
Five other Courts of Appeals have addressed this issue. The Fourth, Seventh, Ninth, and Tenth Circuits have held that an inconclusive record is insufficient to satisfy a noncitizen’s burden of proving eligibility for discretionary relief. See Sanchez v. Holder,
The Fourth Circuit, for example, explained that it is the alien’s burden to prove by a preponderance of the evidence that the inadmissibility ground “do[es] not apply.” Salem,
The only court to conclude otherwise is the Second Circuit, which employed the categorical approach to hold that presentation of an inconclusive record of conviction satisfies a noncitizen’s burden to demonstrate that he has not been convicted of an aggravated felony. See Martinez v. Mu-kasey,
It is clear from the relevant statutory text that the government bears the burden of establishing removability. See 8 U.S.C. § 1229a(c)(3)(A). Once the government has met its burden, the noncitizen then bears the burden of establishing his eligibility for discretionary cancellation of removal. See 8 U.S.C. § 1229a(c)(4)(A)(i). To relieve either party of their burden would “effectively nulliffy] the statutorily prescribed burden of proof.” See Garcia,
We now turn to the merits. Here, there is no question that Syblis is removable. Indeed, he conceded the point. The burden then shifted to Syblis to prove the absence of any impediment to discretionary relief. To do so, Syblis had to demonstrate, by a preponderance of the evidence, that the substance involved in his conviction did not involve a federally-defined controlled substance. A burden of proof by a preponderance of the evidence “requires the trier of fact to believe that the existence of a fact is more probable than its nonexistence.” Concrete Pipe & Prods, of Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal,
IV. Conclusion
For the reasons set forth above, we will deny Syblis’s petition for review.
Notes
. 8 U.S.C. § 1227(a)(1)(B) renders deportable "[a]ny alien who is present in the United States in violation of this chapter or any other law of the United States, or whose nonimmi-grant visa (or other documentation authorizing admission into the United States as a nonimmigrant) has been revoked under section 1201(i) of this title.”
. Section 1227(a)(2)(B)(i) of Title 8 of the United States Code renders deportable "[a]ny alien who at any time after admission has
. Under 8 U.S.C. § 1182(h), the "Attorney General may, in his discretion, waive [a finding of inadmissibility] as it relates to a single offense of simple possession of 30 grams or less of marijuana....”
. 8 U.S.C. § 1182(a)(2)(A)(i)(II) renders inadmissible "any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of ... a violation of (or a conspiracy or attempt to violate) any law or regulation ... relating to a controlled substance (as defined in section 802 of Title 21).”
.While jurisdiction to review removal orders issued against noncitizens convicted of certain crimes is generally precluded by 8 U.S.C. § 1252(a)(2)(C), this jurisdiction stripping
. Syblis would still need to demonstrate that his November 30, 2004 conviction for possession of marijuana involved 30 grams or less of marijuana.
. In Rojas, we analyzed a statute substantively identical to the one at issue in this case. There, the government instituted removal proceedings against Rojas, a noncitizen, under 8 U.S.C. § 1227(a)(2)(B)(i), which rendered de-portable “any alien who at any time after admission has been convicted of a violation of ... any law or regulation ... relating to a controlled substance (as defined in section 802 of Title 21)..." Rojas,
. Syblis initially based his entire argument on the assumption that resolution of this case required resort to either the formal categorical approach or the modified categorical approach. However, at oral argument, he conceded that, in light of our recent decision in Rojas, those arguments are no longer valid.
. The categorical approach is typically "used to ascertain whether a prior conviction 'fits' the definition of a generic federal predicate offense for purposes of certain immigration or sentencing consequences.” Rojas,
. Syblis also contends that if we were to read the "controlled drugs” requirement in the Virginia statute as "controlled substances,” we would render meaningless other words in the statutory language. We reject this contention. We are not reading "controlled drugs” as "controlled substances.” As our analysis indicates, the statute refers to both "drugs" and "controlled substances.” Further, the portion of the statute to which Syblis directs our attention, Va.Code Ann. tit. 18.2-265.3, which he claims is the actual statute under which individuals are charged for paraphernalia related to controlled substances, is unhelpful to his position as well. That statute, which punishes "person[s] who sell[] or possess[] with intent to sell drug paraphernalia,” criminalizes a completely different act — the sale of, or intent to sell, drug paraphernalia.
. Following oral argument, the Immigrant Defense Project (the "IDP”) requested leave to file as amicus curiae a letter in support of petitioner. We granted that motion. In that letter, the IDP asserts that the question of whether a noncitizen is ineligible for relief based upon a prior conviction is a legal inquiry — rather than factual' — as to which the burden of proof has no relevance. We disagree with IDPs contention regarding the burden of proof. Courts cannot arrive at legal conclusions in a context such as this without consid
. Syblis argues that Thomas v. Attorney General,