Rosas-Leon, et al v. Holder, No. 08-70372 (9th Cir. 2011)

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FILED JAN 24 2011 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT ANTONIO ROSAS-LEON, Petitioner, No. 08-70372 Agency No. A044-551-191 v. MEMORANDUM * ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted January 10, 2011 ** Before: BEEZER, TALLMAN, and CALLAHAN, Circuit Judges. Antonio Rosas-Leon, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals order dismissing his appeal from an immigration judge s ( IJ ) order denying his application for cancellation of removal under 8 U.S.C. § 1229b(a). We have jurisdiction under 8 U.S.C. § 1252. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). We review de novo questions of law, Cheuk Fung S-Yong v. Holder, 600 F.3d 1028, 1034 (9th Cir. 2010), and we deny the petition for review. The IJ correctly determined that Rosas-Leon s 2004 conviction for violating Cal. Penal Code § 273.5 is an aggravated felony crime of violence under 8 U.S.C. § 1101(a)(43)(F), where he was sentenced to a term of imprisonment of one year. See Banuelos-Ayon v. Holder, 611 F.3d 1080, 1083 (9th Cir. 2010) (a conviction under Cal. Penal Code § 273.5 is categorically a crime of violence under 18 U.S.C. § 16(a)); see also Renteria-Morales v. Mukasey, 551 F.3d 1076, 1083 (9th Cir. 2008) ( [W]e do not use the categorical and modified categorical approach to determine whether a petitioner has met any sentencing requirement specified in § 1101(a)(43). ). The IJ therefore did not err in concluding that Rosas-Leon was statutorily ineligible for cancellation of removal. See 8 U.S.C. § 1229b(a)(3). Because he conceded removability under 8 U.S.C. § 1227(a)(2)(B)(i), Rosas-Leon s contention that the IJ improperly allocated the burden of proof is unavailing. See 8 C.F.R. § 1240.8(d); see also Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1127 (9th Cir. 2007). Rosas-Leon s due process claim is also unavailing. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error and prejudice for a petitioner to prevail on a due process claim). PETITION FOR REVIEW DENIED. 2 08-70372

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