FILED
NOT FOR PUBLICATION APR 27 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
WILMER SALVADOR ALEMAN, aka No. 11-70894
Wilmer Salvador Aleman-Bonilla,
Agency No. A044-186-342
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER JR., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 17, 2012 **
San Francisco, California
Before: SCHROEDER, O’SCANNLAIN, and GRABER, Circuit Judges.
Petitioner, William Salvador Aleman, seeks review of a decision of the
Board of Immigration Appeals ("BIA") dismissing his appeal of an immigration
judge’s removability finding. Petitioner’s central argument is that the removability
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
finding rested on an erroneous determination that a particular criminal conviction
constituted an "aggravated felony," as that term is used in 8 U.S.C.
§ 1227(a)(2)(A)(iii). Whether an offense is an aggravated felony is a question of
law over which we have jurisdiction. Morales-Alegria v. Gonzales, 449 F.3d 1051,
1053 (9th Cir. 2006). In light of new evidence not considered by the BIA, we now
remand.
1. In denying Petitioner’s appeal, the BIA considered a record containing an
original sentencing order and an amended sentencing order that was entered nunc
pro tunc for the same conviction. Respondent asked us to take judicial notice of a
second amended sentencing order, entered nunc pro tunc for the same conviction
underlying the other two sentencing orders. Petitioner did not oppose judicial
notice, and we took notice of the second amended sentencing order.
The second amended sentencing order is not part of the administrative
record. Our review is generally "confined to the administrative record before the
BIA." Dent v. Holder, 627 F.3d 365, 371 (9th Cir. 2010). Thus, having taken
notice of the latest sentencing order, we now remand to the BIA to consider, in the
first instance, that order’s effect on Petitioner’s arguments. See Fregozo v. Holder,
576 F.3d 1030, 1039 (9th Cir. 2009) (remanding to BIA where all relevant
evidence had not been presented to the BIA).
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2. Respondent’s arguments in favor of dismissal are unpersuasive. The
second amended sentencing order is not a change of circumstances that would
moot this case; it is merely new evidence that has yet to be considered by the BIA.
REMANDED.
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