                                                                           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                            NOT FOR PUBLICATION                             APR 27 2012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).


                                          2
      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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