Wilmer Aleman v. Eric Holder, Jr.

MEMORANDUM

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 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…