Matter of Gabriel Almanza-Arenas, 24 I. & N. Dec. 771 (BIA 2009) (noncitizen whose application for relief from removal was filed after the May 11, 2005, effective date of the REAL ID Act of 2005, Division B of Pub. L. No. 109-13, 119 Stat. 231, has the burden to prove that he satisfies the applicable eligibility requirements and merits a favorable exercise of discretion under INA 240(c)(4)(B), 8 U.S.C. 1229a(c)(4)(B) (2006), and must provide corroborating evidence requested by the Immigration Judge pursuant to INA 240(c)(4)(B), unless it cannot be reasonably obtained; The REAL ID Act applies to all applications for relief filed on or after May 11, 2005. "[I]t is the date the application for relief was filed that governs, rather than the date the Notice to Appear was filed."), distinguishing Sandoval-Lua v. Gonzales, 499 F.3d 1121 (9th Cir. 2007).



Note: Counsel should argue here that the only difference between this case and Sandoval-Lua, is the additional requirement that the respondent must provide corroborating evidence (record of conviction) to establish that the record is, in fact, ambiguous. Thus, this is a burden of production issue, and the burden of proof remains the same as described in Sandoval-Lua. Although Sandoval-Lua was examining a regulation, rather than statute, the essential language of both regarding the burden of proof is the same.



While the Ninth Circuit noted that the current 240(c)(4)(B) did not apply in Sandoval-Lua, the reasoning of the case was based on Taylor and Shepard, rather than a reading of the INA, and arguably still holds in a case where the noncitizen did comply with 240(c)(4)(B):



We are thus left to consider this question: Does an alien seeking to prove his eligibility for cancellation of removal under 8 U.S.C. 1229b(a) carry his burden of establishing by a preponderance of the evidence that he has not been convicted of an aggravated felony when the alien produces an inconclusive record of conviction? We conclude that he does. By submitting an inconclusive record of conviction, Lua has affirmatively proven under the modified categorical analysis that he was not necessarily "convicted of any aggravated felony." 8 U.S.C. 1229b(a)(3).



Under the modified categorical analysis, our concern is with the nature of Lua's 11379(a) conviction, not with the conduct underlying the conviction; FN9 consequently, *1131 we must determine whether the judicially noticeable documents establish that Lua's conviction necessarily was for all of the elements constituting an aggravated felony under 8 U.S.C. 1101(a)(43)(B). If the record of conviction does not so establish, Lua's 11379(a) conviction cannot amount to the generic offense, and Lua has carried his burden. This conclusion results from the Supreme Court's holdings in Taylor, 495 U.S. at 599-602, 110 S.Ct. 2143, and Shepard, 544 U.S. at 19-21, 125 S.Ct. 1254, which both stress that a predicate conviction qualifies as a generic crime under the modified categorical approach only if the record of conviction shows the jury "necessarily" found all of the generic elements, or the defendant "necessarily" admitted all of the generic elements in a plea.



Moreover, there is nothing no reason to believe that INA 240(c)(4)(A)(i) requires any heavier a burden of proof than did 8 C.F.R. 1240.8(d), at issue in Sandoval-Lua. Thus counsel should argue that Sandoval-Lua survives post-REAL-ID as long as the respondent complied with INA 240(c)(4)(B).



Counsel can also argue that this BIA decision is incorrect, since the statutory language of INA 240(c)(4)(B) concerns determinations of credibility, and does not come into play in the separate question of the existence/nature of the conviction that allegedly triggers removability.