Damian Syblis v. Atty Gen USA

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 11-4478

____________

DAMIAN ANDREW SYBLIS,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

____________

On Petition for Review from an

Order of the Board of Immigration Appeals

(Board No. A087-154-613)

Immigration Judge: Honorable Walter A. Durling

____________

Argued February 18, 2014

Before: FISHER, JORDAN and SCIRICA, Circuit Judges.

(Filed: August 18, 2014 )

Ryan A. Muennich, Esq. (Argued)

Muennich & Bussard

30 Vesey Street

16th Floor

New York, NY 10007

Counsel for Appellant

Nancy Morawetz, Esq.

Washington Square Legal Services, Inc.

Immigrant Rights Clinic

245 Sullivan Street

5th Floor

New York, NY 10012

Jayashri Srikantiah, Esq.

Stanford Law School

Mills Legal Clinic, Immigrants' Rights Clinic

559 Nathan Abbott Way

Stanford, CA 94305

Counsel for Amicus

Anthony P. Nicastro, Esq. (Argued)

United States Department of Justice

Office of Immigration Litigation

2

450 5th Street, N.W.

Washington, DC 20001

Thomas W. Hussey, Esq.

Eric H. Holder, Jr., Esq.

Sharon M. Clay, Esq.

United States Department of Justice

Office of Immigration Litigation, Civil Division

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

____________

OPINION OF THE COURT

____________

FISHER, Circuit Judge.

This appeal arises from the entry of an order of

removal under 8 U.S.C. § 1227(a)(1)(B).1 An Immigration

1

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

nonimmigrant visa (or other documentation authorizing

admission into the United States as a nonimmigrant) has been

revoked under section 1201(i) of this title."

3

Judge ("IJ") found petitioner removable and ineligible for

cancellation of removal, and the Board of Immigration

Appeals ("BIA") affirmed. Petitioner concedes removability

under § 1227(a)(1)(B), but contests the adverse determination

of his eligibility for cancellation of removal. Because

petitioner has failed to meet his statutorily prescribed burden

of demonstrating eligibility for relief from removal, we will

affirm.

I. Facts & Procedural Background

Petitioner Damian A. Syblis, a native and citizen of

Jamaica, entered the United States on May 9, 2000 as a non-

immigrant 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, Syblis 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

4

authorization, and pursuant to 8 U.S.C. § 1227(a)(2)(B)(i)2

for his paraphernalia and marijuana convictions. Appearing

before an IJ on April 14, 2011, Syblis conceded removability

on the grounds that he had overstayed his visa; however, he

contested his removability on the grounds that he was

convicted of an offense relating to a controlled substance.

During that time, Syblis also renewed a previous application

for an adjustment of status, pursuant to 8 C.F.R. §

245.2(a)(5)(ii), and requested a waiver of criminal

inadmissibility grounds, pursuant to 8 U.S.C. § 1182(h).3

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"

2

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 been convicted of a violation of . . . any

law or regulation . . . relating to a controlled substance (as

defined in section 802 of Title 21), other than a single offense

involving possession for one's own use of 30 grams or less of

marijuana . . . .").

3

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 . . . ."

5

for purposes of 8 U.S.C. § 1182(a)(2)(A)(i)(II).4 Because

Syblis had two convictions that related to controlled

substances, instead of only one, the IJ found him ineligible

for a waiver of criminal inadmissibility under 8 U.S.C. §

1182(h). The IJ pretermitted Syblis's application for an

adjustment of status, and ordered him removed from the

United States to Jamaica.

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)(i). In analyzing

the IJ's denial of Syblis's request for relief, the BIA first

observed that Syblis 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 –

4

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)."

6

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

5

jurisdiction arises under 8 U.S.C. § 1252(a).

"When the BIA issues its own decision on the merits,

rather than a summary affirmance, we review its decision, not

that of the IJ." Pieschacon-Villegas v. Att'y Gen., 671 F.3d

303, 310 (3d Cir. 2011). "We review legal determinations de

novo, subject to the principals of deference articulated in

Chevron v. Natural Resources Defense Council, 467 U.S.

837, 844 (1984)." Id.

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., 582 F.3d

5

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 only applies where the noncitizen is found to be

removable on the basis of the criminal conviction. The

jurisdiction-stripping provision does not apply in the instant

context, however, because the BIA affirmed the IJ's decision

only as to Syblis's removability based upon the overstay

statute.

7

462, 464 n.2 (3d Cir. 2009) ("An alien bears the burden of

establishing his eligibility for discretionary cancellation of

removal."). "If the evidence indicates that one or more of the

grounds for mandatory denial of the application for relief may

apply, the alien shall have the burden of proving by a

preponderance of the evidence that such grounds do not

apply." 8 C.F.R. § 1240.8(d).

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 controlled substance.6

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

6

Syblis would still need to demonstrate that his

November 30, 2004 conviction for possession of marijuana

involved 30 grams or less of marijuana.

8

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, 728

F.3d 203, 209 (3d Cir. 2013) (en banc) (analyzing a

substantively identical statute to determine the government's

burden in a removal proceeding).7

In his petition for review, Syblis argues that he has met

this burden.8 He argues that Va. Code Ann. § 54.1-3466

cannot relate to controlled substances because the range of

behavior targeted by the statute covers controlled drugs and

7

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

deportable "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, 728 F.3d at 205. Given the language of

the statute, we determined that, in order for the government to

meet its burden, it had to establish that Rojas: (1) "is an alien

(2) who at any time after entering the country violated or

attempted to violate a law relating to a controlled substance

and (3) that the controlled substance is defined as such by

federal law." Id. at 209. We apply here the same

construction to the substantively identical language found in 8

U.S.C. § 1182(a)(2)(A)(i)(II).

8

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.

9

not controlled substances. Syblis finds this to be a key

distinction, as the statute defines the terms "drug" and

"controlled substances" separately. Because, as he sees it,

Va. Code Ann. § 54.1-3466 does not relate to controlled

substances, Syblis contends that our inquiry is at an end, and

our Court need not reach the question of whether the

controlled substance involved in his conviction was defined

by federal law. Alternatively, however, he argues that, if we

conclude that Va. Code Ann. § 54.1-3466 does meet the

"relating to" portion of the analysis, he has still met his

burden because his record of conviction is silent as to the type

of substance involved in his offense.

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." 728 F.3d at 217. Analysis of those

cases does not require a strict element-by-element match

between the federal and state statutes as required by the

categorical approach.9 See id. at 217 n.15 (noting that many

cases deciding whether a statute "relates to" controlled

substances involve statutes of conviction that have no exact

federal analog, making impossible the comparison of

elements that the categorical approach requires). Rather, "the

9

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, 728 F.3d at

214.

10

inquiry focuses on the nature of the defendant's conviction,

and whether it 'stand[s] in relation,' 'pertain[s],' has 'bearing of

concern,' or 'refer[s]' to the object or crime of comparison."

Id. at 217 (quoting Desai v. Mukasey, 520 F.3d 762, 764 (7th

Cir. 2008)). This inquiry hones in on the expansive scope

generally accorded the "relating to" language. See, e.g.,

Mizrahi v. Gonzales, 492 F.3d 156, 159 (2d Cir. 2007)

("Congress's use of the phrase 'relating to' in federal

legislation generally signals its expansive intent."); Denis v.

Atty. Gen., 633 F.3d 201, 212 (3d Cir. 2011) (applying the

phrase "relating to" broadly); Luu-Le v. INS, 224 F.3d 911,

915 (9th Cir. 2000) (observing that the Ninth Circuit has

previously construed the "relating to" language broadly).

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, 633 F.3d at 212 (alteration in original) (internal

quotation marks and citations omitted). We find that this test

is easily met here.

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

implementation or combination

thereof adapted for the

administration of controlled

11

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 VI . . . .," listing,

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

12

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, 687 F.3d 150, 163

(3d Cir. 2012), where we concluded that certain provisions of

the statute did not relate to controlled substances. Syblis

argues that we should reach the same conclusion here. We

disagree. This case concerns neither the same situation nor

the same statute as in Borrome. There, we examined the

Food, Drug, and Cosmetic Act (the "FDCA") to determine

13

whether it was a law relating to controlled substances. A

significant point of distinction here is that the FDCA is not a

drug paraphernalia statute. On that point alone we are

justified in disregarding that case for purposes of our analysis.

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,' 'pertain[s],' has 'bearing of concern,' or

'refer[s]' to" controlled substances. Rojas, 728 F.3d at 217

(quoting Desai, 520 F.3d at 764). We made this point in

Borrome:

[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.

687 F.3d at 160 (alterations and internal quotation marks

omitted). Syblis's construction of Va. Code Ann. § 54.1-3466

cuts too narrowly for purposes of the "relating to" analysis

14

and, rather than construe the language of the statute broadly,

invites us to revert back to the element-by-element analysis

that we rejected in Rojas. 728 F.3d at 215 (stating that the

formal categorical approach would not apply to a "relating to"

inquiry). We decline that invitation.

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, 728 F.3d at 218 (quoting

Borrome, 687 F.3d at 162). That is clearly not the case here.

Va. Code Ann. § 54.1-3466 is plainly intended to criminalize

behavior involving the possession or distribution of various

substances – at least some of which are covered by the federal

schedules of controlled substances. This point is

demonstrated by the statute's use of the term "controlled

substances" and its coinciding definition. Further, the statute

makes clear that an object is not "controlled paraphernalia"

unless it is in some way linked to substances. Indeed, the

statute painstakingly describes the circumstances and intent

that must be present in order for a conviction to be obtained

under the statute, all of which relate to the production or use

of substances that, again, are covered in part by the federal

schedules of controlled substances. On this basis, we are

satisfied that Va. Code Ann. § 54.1-3466 is sufficiently

connected to controlled substances so as to be "related to"

controlled substances for purposes of § 1182(a)(2)(A)(i)(II).

See Luu-Le, 224 F.3d at 915 ("Although the definition of

'drug' . . . does not map perfectly the definition of 'controlled

15

substance' . . . in our opinion [the statute] is clearly a law

'relating to' a controlled substance.'").10

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, 728 F.3d at 209. Syblis faces an

additional hurdle at the outset, however, because his record of

conviction is inconclusive as to the specific substance

involved. Our inquiry thus compels us to determine whether

an inconclusive record of conviction is sufficient to satisfy a

noncitizen's burden to demonstrate eligibility for relief from

removal. For our Court, this question is a matter of first

impression.

10

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.

16

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, -- F.3d --, 2014 WL 3329186, at *6 n.6

(7th Cir. July 9, 2014) (noting that if, in the relief context,

"the analysis has run its course and the answer is still unclear,

the alien loses by default"); Young v. Holder, 697 F.3d 976,

990 (9th Cir. 2012) (en banc) (relying on the "statutorily

prescribed burden of proof" to conclude that a noncitizen

cannot carry his burden of demonstrating eligibility for

discretionary relief by merely establishing that record of

conviction is inconclusive), overruling Sandoval-Lua v.

Gonzales, 499 F.3d 1121 (9th Cir. 2007) (concluding that an

inconclusive record of conviction satisfies a noncitizen's

burden of establishing eligibility for discretionary relief);

accord Salem v. Holder, 647 F.3d 111, 116 (4th Cir. 2011);

Garcia v. Holder, 584 F.3d 1288, 1290 (10th Cir. 2009).

Each case relies heavily on the statutorily prescribed burden-

shifting scheme associated with removal proceedings.

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,

647 F.3d at 115 (emphasis added). With an inconclusive

record of conviction, "[i]t is equally likely that [the

noncitizen] was convicted of [the federal crime] as it is that

he was not." Id. at 117. The Tenth Circuit added that, "[t]he

fact that [the noncitizen] is not to blame for the ambiguity

surrounding his criminal conviction does not relieve him of

his obligation to prove eligibility for discretionary relief."

Garcia, 584 F.3d at 1290. On that basis, those courts have

concluded that the noncitizen cannot meet his or her burden

where the record is inconclusive.

17

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. Mukasey,

551 F.3d 113, 121-22 (2d Cir. 2008). The court placed

significant emphasis on the statute's use of the word

"conviction," and focused on the practical difficulties

presented by failure to confine the relief inquiry in

accordance with strictures of the categorical approach. Id. at

122. We have already determined above that the categorical

approach does not apply to the case before us today. It is,

therefore, unnecessary for us to reconcile that approach with

the language of the statute at issue here. A more noteworthy

distinction between the Second Circuit's decision and that of

the Fourth, Ninth, Seventh, and Tenth Circuits, however, is

the Second Circuit's lack of emphasis on the noncitizen's

burden in the relief context. 11 See, e.g., Salem, 647 F.3d at

11

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 considering the underlying facts. Our analysis of a

noncitizen's burden in this context merely assists us in

arriving at a legal conclusion, that is, the determination of

whether an inconclusive record of conviction is sufficient to

satisfy a noncitizens' burden of proving eligibility for

18

119 (criticizing Martinez for dismissing the "clear statutory

language" establishing the noncitizen's burden in the relief

context, and rejecting use of the categorical approach in such

a context as well).

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 nullif[y] the

statutorily prescribed burden of proof." See Garcia, 584 F.3d

at 1290. The Second Circuit's holding does just that. For that

reason, we reject the holding of the Second Circuit, and align

our case law with that of the Fourth, Ninth, Seventh, and

Tenth Circuits. We now hold that an inconclusive record of

discretionary relief.

19

conviction does not satisfy a noncitizen's burden of

demonstrating eligibility for relief from removal.12

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., 508 U.S. 602, 622

(1993) (internal quotation marks and citation omitted).

Accordingly, the burden establishes "which party loses if the

12

Syblis argues that Thomas v. Attorney General, 625

F.3d 134 (3d Cir. 2010), counsels in favor of a different

result. See id. at 147 (because the record was silent as to

whether the noncitizen sold or exchanged marijuana, court

could not definitively conclude that his conviction for

criminal sale of marijuana constituted drug trafficking crime

that qualified as aggravated felony). He asserts that Thomas

stands for the proposition that when a record of conviction

does not establish that a particular element of a crime was

necessarily found by the convicting court, the alien meets his

burden of proving that the provision precluding relief from

removal does not apply. We reject this argument and

Thomas's application to the instant context. In Thomas, our

inquiry required resort to the categorical approach, which we

have expressly rejected here. That opinion also lacks any

discussion of a noncitizen's burden of proving eligibility for

discretionary relief.

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evidence is closely balanced." Schaffer ex rel. Schaffer v.

Weast, 546 U.S. 49, 56 (2005). Here, Syblis has only

demonstrated that the record is inconclusive – that his

conviction for paraphernalia possession may or may not be

related to a federally controlled substance. This

demonstration shows only that "the evidence is closely

balanced" and fails to show "that the existence of a fact is

more probable than its nonexistence." We conclude that this

is insufficient to meet his burden of proving eligibility for

relief. Syblis is, therefore, not entitled to cancellation of

removal.

IV. Conclusion

For the reasons set forth above, we will deny Syblis's

petition for review.

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