Opinion
No. 06-72882.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
August 23, 2007.
On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. A92-896-349.
Before: KLEINFELD, SILVERMAN, and M. SMITH, Circuit Judges.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Baudilio Pinto Morales, a native and citizen of Guatemala, petitions for review of an order of the Board of Immigration Appeals affirming without opinion an immigration judge's ("IJ") removal order. We have jurisdiction pursuant to 8 U.S.C. § 1252. Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1163 (9th Cir. 2006). Reviewing de novo, id., we deny the petition for review.
Pinto Morales's contention that the conviction documents in the record do not establish that his term of imprisonment was "at least one year" under 8 U.S.C. § 1101(a)(43)(F) is unpersuasive. As an applicant for cancellation of removal, Pinto Morales has the burden of refuting record evidence that his conviction under Cal. Penal Code § 273.5, for which he was initially sentenced to 120 days imprisonment, is an aggravated felony. See Salviejo-Fernandez v. Gonzales, 455 F.3d 1063, 1066 (9th Cir. 2006). Although the relevant document indicating that Pinto Morales was sentenced to 300 additional days imprisonment for a subsequent probation violation does not explicitly reference Cal. Penal Code § 273.5, it contains the same case number listed on both the corresponding information and a minute order recording Pinto Morales's conviction. We therefore conclude that Pinto Morales has not met his burden of proving that his conviction resulted in a term of imprisonment less than one year. See United States v. Jimenez, 258 F.3d 1120, 1125 (9th Cir. 2001) (including term of imprisonment imposed after probation violation in aggravated felony analysis). Accordingly, the IJ correctly determined that Pinto Morales is ineligible for lawful permanent resident cancellation of removal. See 8 U.S.C. § 1229b(a)(3) (precluding eligibility for aggravated felons).
PETITION FOR REVIEW DENIED.