                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                       MAY 29 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

CLAUDE STEPHEN BENT, AKA Claude                 No.    17-72631
Bent,
                                                Agency No. A037-050-176
                Petitioner,

 v.                                             MEMORANDUM*

WILLIAM P. BARR, Attorney General,

                Respondent.

                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                      Argued and Submitted March 14, 2019
                           San Francisco, California

Before: WALLACE, TASHIMA, and McKEOWN, Circuit Judges.

      Petitioner Claude Bent is a United States lawful permanent resident and

Jamaican national. In 2006, Bent was convicted of voluntary manslaughter and

attempted murder in California superior court. The Department of Homeland

Security (DHS) subsequently commenced removal proceedings, and the

Immigration Judge (IJ) concluded that Bent was removable for committing an



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
aggravated felony. The IJ denied Bent’s claim for withholding of removal because

he had been convicted of a particularly serious crime. The Board of Immigration

Appeals (Board) affirmed, and Bent petitioned this court for review. We have

jurisdiction under 8 U.S.C. § 1252, and we grant the petition and remand for

further proceedings.

      Bent argues that the Board erred in its removability analysis because

California attempted murder is broader than generic Immigration and Nationality

Act (INA) attempted murder, as used in 8 U.S.C. § 1101(a)(43)(A).1 Contrary to

DHS’s contentions, we have jurisdiction to consider this argument because Bent,

acting pro se, argued to the Board that “the state offense does not match up with

the generic offense,” and the Board adjudicated whether California attempted

murder was a categorical match for INA attempted murder. This argument is

therefore exhausted. See Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 873-74 (9th

Cir. 2008).

      On the merits, the Board held that Bent was removable because “the full

range of conduct punishable as ‘murder’ under section 187(a) of the California

Penal Code corresponds categorically to generic ‘murder’ under [8 U.S.C.

§ 1101(a)(43)(A)].” However, the Board did not consider whether generic INA


      1
              Bent initially argued that the IJ lacked jurisdiction because Bent’s
notice to appear was inadequate. Bent has since conceded that this argument fails
in light of Karingithi v. Whitaker, 913 F.3d 1158, 1162 (9th Cir. 2019).

                                         2
murder encompasses feticide, which is punishable conduct under California’s

murder statute. See Cal. Penal Code § 187(a). We therefore think it prudent to

remand for the Board to consider whether “murder” as used in that provision

categorically includes the unlawful killing of a fetus as prohibited by California.

See Velazquez-Herrera v. Gonzales, 466 F.3d 781, 783 (9th Cir. 2006) (remanding

under similar circumstances because “we think it prudent to allow the BIA in the

first instance to settle upon a definition of child abuse in a precedential opinion”).

      DHS argues that we should nonetheless deny the petition because Bent is

removable under the “modified categorical approach.” Under this approach, when

a non-citizen has pleaded guilty to a state crime that is divisible into two sets of

elements,2 one of which is overbroad to the INA and one of which is not, we

consult the charging document, plea agreement, plea colloquy, or other

“comparable judicial record of the factual basis for the plea” to determine upon

which set of elements the non-citizen’s conviction rests. Moncrieffe v. Holder, 569

U.S. 184, 190-91 (2013) (quotation marks omitted) (quoting Nijhawan v. Holder,

557 U.S. 29, 35 (2009)). DHS argues that, while Bent’s California judgment of

conviction only reflects that he was convicted of attempted murder under sections

187(a) and 664, the California information clearly and convincingly shows that he


      2
            Bent concedes that California attempted murder is divisible and that
the modified categorical approach is applicable here, so we do not separately
determine whether it is divisible.

                                           3
was convicted of the attempted murder of a human being, rather than a fetus.

      DHS’s argument fails because we cannot infer that crimes of conviction in

the judgment refer to the charges set forth in the information. See United States v.

Vidal, 504 F.3d 1072, 1087 (9th Cir. 2007) (en banc) (“[W]hen the record of

conviction comprises only the [information] and the judgment, the judgment must

contain the critical phrase “as charged in the Information”) (quotation marks and

citations omitted); Ruiz-Vidal v. Lynch, 803 F.3d 1049, 1054 (9th Cir. 2015)

(applying Vidal’s standard). Furthermore, DHS cannot rely on handwritten marks

on Bent’s information to argue that the information was amended by interlineation

because this argument was raised for the first time at oral argument, and the Board

has never considered the significance of the handwriting. On remand, however, we

leave open the possibility that DHS may prevail under the modified categorical

approach by raising this interlineation argument or by further developing the

record of Bent’s judgment of conviction.3 Our disposition should not be read to

prevent the Board from taking any action it deems appropriate under the


      3
              After oral argument, DHS submitted a Rule 28(j) letter, to which was
attached a transcript of Bent’s state court plea colloquy. Bent disputes whether the
plea colloquy establishes that his conviction was for the attempted murder of a
human being, but that dispute is not relevant at this time because the plea colloquy
is not part of the administrative record. See 8 U.S.C. § 1252(b)(4)(A) (“[T]he court
of appeals shall decide the petition only on the administrative record on which the
order of removal is based”). We therefore do not consider the transcript, but DHS
may offer it during further agency proceedings and the agency may determine its
import in the first instance.

                                          4
circumstances.

      Finally, Bent also argued that the Board’s withholding of removal analysis

was faulty because it erred in its particularly serious crime determination. The

Board did not consider this argument, but, if it has not been waived, may do so on

remand.

      PETITION GRANTED; REMANDED.




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