NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________ No. 22-1493 ______________ JOSE LUIS REYES, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA ______________ On Petition for Review of a Decision of the Board of Immigration Appeals (Agency No. A094-241-250) _________ Submitted Pursuant to Third Circuit L.A.R. 34.1(a) on December 8, 2022 Before: SHWARTZ, MATEY, and FUENTES, Circuit Judges (Filed: February 23, 2023) ______________ OPINION* ______________ * This disposition is not an opinion of the full Court and under I.O.P. 5.7 does not constitute binding precedent. FUENTES, Circuit Judge. Jose Luis Reyes petitions for review of a decision of the Board of Immigration Appeals (“BIA”) denying his application for cancellation of removal. Because Reyes has failed to meet his burden to establish that his conviction under a New York statute is not a disqualifying offense for cancellation of removal, we deny his petition for review. I. Petitioner Reyes is a native and citizen of Mexico who first entered the United States without inspection in 1995. In 2004, Reyes pleaded guilty to a charge of sexual abuse under New York Penal Law § 130.60 (“New York Statute”). In 2010, the Department of Homeland Security initiated removal proceedings against Reyes by issuing a Notice to Appear. Reyes did not dispute his removability on non-criminal grounds. Reyes moved for cancellation of removal based on hardship to his three children if he were removed. However, Reyes’s conviction for sexual abuse in the second degree presents a barrier to cancellation of removal: that relief is unavailable to an applicant who has been convicted of an “aggravated felony.”1 The Immigration Judge (“IJ”) found Reyes removable, and then considered whether Reyes’s conviction constituted an aggravated felony. The IJ concluded that the issue had been directly addressed by the BIA in Matter of Small, and that the conviction did constitute an aggravated felony. The IJ therefore ordered Reyes removed. 1 8 U.S.C. § 1229b(b)(1). 2 Reyes appealed to the BIA. The BIA affirmed the IJ’s ultimate conclusion that the conviction constituted aggravated felony sexual abuse of a minor, making Reyes ineligible for cancellation of removal. Reyes now petitions for review of that decision. II. We have jurisdiction to review the BIA’s final order of removal.2 We lack jurisdiction to review an order to remove a non-citizen who has committed an aggravated felony, 8 U.S.C. § 1252(a)(2)(C), but we may retain jurisdiction to address the prerequisite of whether a petitioner was convicted of an aggravated felony.3 We review the BIA’s determination that Reyes’s New York State conviction constituted an aggravated felony de novo.4 III. Reyes’s removability is not in dispute. Once the government has met its burden of establishing removability, the noncitizen then bears the burden of establishing his eligibility for discretionary cancellation of removal.5 The Immigration and Nationality Act (“INA”) authorizes the Attorney General to cancel the removal of a noncitizen if that person establishes, among other things, that his “removal would result in exceptional and extremely unusual hardship to . . . [his] spouse, …
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