                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                           FILED
                           FOR THE NINTH CIRCUIT                              SEP 08 2010

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

DIONICIO CADIZ TANGONAN,                         No. 07-71588

             Petitioner,                         Agency No. A043-211-911

  v.
                                                 MEMORANDUM*
ERIC H. HOLDER, Attorney General,

             Respondent.



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

                     Submitted and Deferred November 3, 2009
                         Resubmitted September 8, 2010
                                 Honolulu, Hawaii

Before: REINHARDT, THOMAS, and GOULD, Circuit Judges.

       Dionicio Cadiz Tangonan petitions for review of a decision of the Board of

Immigration Appeals (“BIA”) affirming an immigration judge (“IJ”) decision that

Tangonan was removable from the United States as an aggravated felon. We grant

the petition for review.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The government has the burden to prove “by clear and convincing evidence”

that an alien is removable. 8 U.S.C. § 1229a(c)(3)(A). Tangonan was held

removable for being convicted of an aggravated felony involving the “sexual abuse

of a minor” within the meaning of 8 U.S.C. § 1101(a)(43)(A). He had been

convicted of violating H.R.S. § 707-732(1)(b). At the time of Tangonan’s

conviction, that included offense consisted of five subsections, only one of which

involved sexual relations with a minor. The jury’s verdict form does not specify

which subsection constituted the basis for Tangonan’s conviction. Thus, the

conviction does not categorically qualify as a predicate offense under 8 U.S.C. §

1101(a)(43)(A) because the state statute is broader than the generic elements of the

offense of sexual abuse of a minor. Estrada-Espinoza v. Mukasey, 546 F.3d 1147,

1152-1155 (9th Cir. 2008) (en banc).

      The question then, under a modified categorical analysis, is whether the

government proved by clear and convincing evidence that the petitioner had been

convicted of a crime constituting “sexual abuse of a minor.” Id. at 1159-60. In

conducting such an inquiry, we consider the judicially noticeable documents of

record. 8 U.S.C. § 1229a(c)(3)(B). In this case, the critical document is the jury

verdict, which indicates that Tangonan was convicted only of the generic offense.

There are other documents upon which the government relies, such as the


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judgment entered by the court, the mittimus, and the opinion of the Hawaii

Supreme Court on appeal. However, the references to the crime in these

documents are not founded on the actual jury verdict. There is no document that

purports to interpret the jury verdict or to consider analytically whether the

petitioner was convicted under the necessary subsection. Thus, the judicially

noticeable documents do not sustain the government’s burden to show by clear and

convincing evidence that the petitioner had been convicted of the predicate offense.



      The government also contends that reference to the original three-count

indictment should suffice. However, the government withdrew one count and the

petitioner was acquitted of all other charges specified in the indictment. The

conviction was for a lesser-included offense not charged in the indictment.

Therefore the indictment is of no value in determining the judicially noticeable

facts. See Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1079 (9th Cir. 2007) (holding

that charging document could not be used in a modified categorical analysis when

the alien pleaded to a different offense than contained in the charging document).

      The government also attempts to rely on statements made by the petitioner

during the immigration hearing. However, an IJ cannot rely on new statements




                                          3
made in the administrative record when using the modified categorical approach.

Cisneros-Perez v. Gonzales, 465 F.3d 386, 393 (9th Cir. 2006).

      Because the government did not prove by clear and convincing evidence that

the petitioner’s generic conviction under H.R.S. § 707-732(1)(b) qualifies as a

predicate offense under 8 U.S.C. § 1101(a)(43)(A), we must grant the petition for

review.



      PETITION GRANTED.




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