          United States Court of Appeals
                      For the First Circuit


No. 14-2042

                  JOSE RICARDO PERALTA SAUCEDA,

                           Petitioner,

                                v.

                        LORETTA E. LYNCH,*
              Attorney General of the United States,

                           Respondent.


                PETITION FOR REVIEW OF AN ORDER OF
                 THE BOARD OF IMMIGRATION APPEALS


                              Before

                  Torruella, Lynch, and Kayatta,
                          Circuit Judges.


     Brian P. Goldman, with whom Robert M. Loeb, Thomas M. Bondy,
Orrick, Herrington & Sutcliffe LLP, Carlos E. Estrada, and Estrada
Law Office were on brief, for petitioner.
     Leon Fresco, Deputy Assistant Attorney General, with whom
Benjamin C. Mizer, Principal Deputy Assistant Attorney General,
Donald E. Keener, Deputy Director, and Patrick J. Glen, Senior
Litigation Counsel, Office of Immigration Litigation, Civil
Division, U.S. Department of Justice, were on brief, for
respondent.
     Jayashri Srikantiah, Lisa Weissman-Ward, Immigrants' Rights
Clinic, Mills Legal Clinic, Stanford Law School, Manuel Vargas,
Andrew Wachtenheim, and Immigrant Defense Project, on brief for

     *    Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Loretta E. Lynch has been substituted for former Attorney General
Eric H. Holder, Jr., as the respondent.
Immigrant Defense Project, National Immigration Project of the
National Lawyers Guild, American Immigration Lawyers Association,
Detention Watch Network, Committee for Public Counsel Services,
New Hampshire Association of Criminal Defense Lawyers, Maine
Association    of    Criminal     Defense    Lawyers,    Political
Asylum/Immigration Representation Project, Harvard Immigration and
Refugee Clinical Program, Boston University Immigrants' Rights
Clinic, Suffolk University Law School Immigration Clinic, Post-
Deportation Human Rights Project, Ninth Circuit Appellate Project
at Boston College School of Law, and Professors Mary Holper, Irene
Scharf, and Anna Welch, amici curiae in support of petitioner.


                         April 22, 2016
           LYNCH, Circuit Judge.       Jose Ricardo Peralta Sauceda, who

entered the United States illegally in 1993 from Honduras, conceded

in 2007 that he was removable but requested cancellation of

removal.   He now petitions for review of the Board of Immigration

Appeals'   ("BIA")   affirmance   of    an   immigration   judge's   ("IJ")

decision that he was not eligible for cancellation of removal,

based on extreme hardship to his wife and son, because he had

failed to meet his burden of proving by a preponderance of the

evidence that he had not previously been "convicted of" a "crime

of domestic violence" in 2006.       See 8 U.S.C. §§ 1227(a)(2)(E)(i),

1229b(b)(1)(C).

           Peralta   Sauceda   and     the   government    agree   that   the

competent evidence that exists regarding his 2006 Maine conviction

for assault cannot definitively show whether Peralta Sauceda was

in fact convicted of a "crime of domestic violence," as defined by

federal law.   In an initial opinion, now withdrawn, we had denied

his petition for review, based on the arguments then before us.

See Peralta Sauceda v. Lynch, 804 F.3d 101 (1st Cir. 2015), reh'g

granted, opinion withdrawn by Sauceda v. Lynch, No. 14-2042, 2016

WL 760293 (1st Cir. Feb. 3, 2016).

           Peralta Sauceda petitioned for rehearing and for the

first time presented a developed argument based on the Supreme




                                  - 3 -
Court's decision in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013).1

We granted rehearing and took additional briefing from the parties.

See Sauceda, 2016 WL 760293, at *1.            We also acknowledge the

helpful briefs amici curiae filed.

           We are now convinced, despite strong arguments to the

contrary by the respondent, that the issue before us is one of law

and that Moncrieffe requires us to reach a different outcome than

before.   So we grant the petition and remand to the agency.

                                     I.

           Peralta   Sauceda,   a    native   and   citizen   of   Honduras,

entered the United States illegally on December 23, 1993, when he

was 29 years old.    He is now 52 years old, has lived in the United

States for over 22 years, and is married to Hattie, a U.S. citizen

who is disabled and relies on her husband for care.                He has a

teenage son, also a U.S. citizen, from a prior relationship.            His

son suffers from a variety of medical and emotional problems.



     1    We are satisfied that this argument was adequately
raised in Peralta Sauceda's initial petition so as not to be waived
on rehearing.
          The government argued in its opposition to Peralta
Sauceda's petition for rehearing that an argument raised by amici
concerning whether and to what extent the government bears a burden
of production under 8 C.F.R. § 1240.8(d) was never adequately
raised by Peralta Sauceda, see Albathani v. INS, 318 F.3d 365, 375
n.6 (1st Cir. 2003)(noting that "amici may not present legal
theories not argued by the parties"), and was not presented to the
agency and was therefore unexhausted, see Meng Hua Wan v. Holder,
776 F.3d 52, 56 (1st Cir. 2015). As we explain below, whether or
not this issue is waived, we need not reach it.


                                    - 4 -
             On December 11, 2006, Peralta Sauceda pleaded guilty to

Count One of a criminal complaint that charged him with assaulting

his   wife    in   violation    of   Me.   Rev.   Stat.   Ann.   tit.    17-A,

§ 207(1)(A).       That section states that "[a] person is guilty of

assault if: A. The person intentionally, knowingly or recklessly

causes bodily injury or offensive physical contact to another

person."     He was sentenced to 180 days of imprisonment, which was

suspended in full, served no time in prison, and served one year

of probation.

             On August 29, 2007, Peralta Sauceda was served by the

Department of Homeland Security with a Notice to Appear that

charged him with being an alien present in the United States

without      being    admitted       or    paroled.        See    8     U.S.C.

§   1182(a)(6)(A)(i).      At    a   preliminary      hearing,   he   conceded

removability and requested cancellation of removal, which was

based on a claim that his removal would cause extreme hardship to

Hattie and his son.     See id. § 1229b(b)(1).2        At the July 29, 2009,


      2   8 U.S.C. § 1229b(b)(1) establishes four eligibility
requirements for certain nonpermanent residents applying for
cancellation of removal:

             The Attorney General may cancel removal of,
             and adjust to the status of an alien lawfully
             admitted for permanent residence, an alien who
             is inadmissible or deportable from the United
             States if the alien--
                  (A) has been physically present in the
                  United States for a continuous period of
                  not less than 10 years immediately


                                     - 5 -
merits hearing before the IJ, the question was raised whether his

Maine       assault   conviction   qualified   as   a   "crime   of   domestic

violence" under 8 U.S.C. § 1227(a)(2)(E)(i). If so, the conviction

disqualified him from eligibility for cancellation of removal.

See id. § 1229b(b)(1)(C).          The IJ was sympathetic to his extreme

hardship claim, finding that he had shown his removal would cause

extreme hardship to Hattie and his son.3        See id. § 1229b(b)(1)(D).

She also found that Peralta Sauceda had taken responsibility for

assaulting Hattie, had sought help for his drinking, and that there

had been no prior or further attacks on Hattie.

               The effect of Peralta Sauceda's 2006 conviction on his

eligibility for cancellation of removal remained an open question,



                      preceding the date of such application;
                      (B) has been a person of good moral
                      character during such period;
                      (C) has not been convicted of an offense
                      under section 1182(a)(2), 1227(a)(2), or
                      1227(a)(3) of this title, subject to
                      paragraph (5); and
                      (D) establishes that removal would result
                      in exceptional and extremely unusual
                      hardship to the alien's spouse, parent,
                      or child, who is a citizen of the United
                      States or an alien lawfully admitted for
                      permanent residence.

8 U.S.C. § 1229b(b)(1).

        3 The IJ found that Peralta Sauceda had also satisfied the
continuous physical presence requirement.          See 8 U.S.C.
§ 1229b(b)(1)(A). The IJ, however, never made a finding, in the
context of Peralta Sauceda's application for cancellation of
removal, regarding the final eligibility requirement of "good
moral character." Id. § 1229b(b)(1)(B).


                                     - 6 -
and a series of appeals to and remands from the BIA followed.                     The

BIA concluded that the modified categorical approach4 must be

applied to the Maine assault statute.              On September 19, 2013, the

IJ   issued    her    final    order,    pretermitting       Peralta       Sauceda's

application     for   cancellation       of     removal   because     he    was   not

eligible.       In    performing    the       modified    categorical      approach

analysis, the IJ found that the record as presented showed that

Peralta     Sauceda   had     pleaded   guilty     to    committing    a   domestic

violence crime, but that "the record of conviction documents d[id]

not clarify" whether he was convicted under the "bodily injury"

prong or the "offensive physical contact" prong of the Maine

statute.5     The BIA had held in a prior order that only a conviction

under the "bodily injury" prong would qualify as a federal "crime


      4   Under the categorical approach, we ask "whether 'the
state statute defining the crime of conviction' categorically fits
within the 'generic' federal definition of a" disqualifying
offense.   Moncrieffe, 133 S. Ct. at 1684 (quoting Gonzales v.
Duenas-Alvarez, 549 U.S. 183, 186 (2007)); see also Welch v. United
States, No. 15-6418, 2016 WL 1551144, at *3 (U.S. Apr. 18, 2016).
When a "statute is 'divisible' -- i.e., comprises multiple,
alternative versions of the crime," courts may use the modified
categorical approach and "examine a limited class of documents to
determine which of a statute's alternative elements formed the
basis of . . . conviction." Descamps v. United States, 133 S. Ct.
2276, 2284 (2013).

      5   The IJ had previously issued an order to the parties on
July 23, 2013, granting them additional time to provide "any other
part of the record of conviction" that could clarify under which
prong he was convicted. Peralta Sauceda informed the IJ on August
1, 2013, that he was unable to secure any other documents because
the Superior Court of the county where he was convicted does not,
in misdemeanor cases, maintain copies of the documents he needed.


                                        - 7 -
of domestic violence" and render him ineligible for cancellation

of removal.    The IJ held that because Peralta Sauceda had failed

to   produce   Shepard6   documents   showing   that   his   2006   assault

conviction was not a "crime of domestic violence," he had failed

to meet his burden of proving eligibility for cancellation of

removal. See Shepard v. United States, 544 U.S. 13, 16, 26 (2005).

That burden was placed on him by statute and regulation.             See 8

U.S.C. § 1229a(c)(4)(A); 8 C.F.R. § 1240.8(d).7        The BIA affirmed.

Peralta Sauceda's petition for review followed.




      6   Shepard documents include "the statutory definition,
charging document, written plea agreement, transcript of plea
colloquy, and any explicit factual finding by the trial judge to
which the defendant assented." Shepard v. United States, 544 U.S.
13, 16 (2005).

      7   In removal proceedings, the statute provides, in
relevant part, that "[a]n alien applying for relief or protection
from removal has the burden of proof to establish that the alien
-- (i) satisfies the applicable eligibility requirements."      8
U.S.C. § 1229a(c)(4)(A).    The applicable regulation similarly
states:

           The respondent shall have the burden of
           establishing that he or she is eligible for
           any requested benefit or privilege and that it
           should be granted in the exercise of
           discretion.   If the evidence indicates that
           one or more of the grounds for mandatory
           denial of the application for relief may
           apply, the alien shall have the burden of
           proving by a preponderance of the evidence
           that such grounds do not apply.

8 C.F.R. § 1240.8(d).


                                 - 8 -
                                       II.

             Since "the BIA adopted and affirmed the IJ's ruling, and

discussed some of the bases for the IJ's opinion, we review both

the BIA's and IJ's opinions."          Idy v. Holder, 674 F.3d 111, 117

(1st Cir. 2012).         We review legal conclusions de novo, while

affording "appropriate deference to the BIA's interpretation of

immigration statutes."        Ruci v. Holder, 741 F.3d 239, 242 (1st

Cir. 2013).

             We start with the areas of agreement. Both parties agree

that the Maine statute is divisible and that, accordingly, the

modified categorical approach is the proper way to analyze the

case. See Descamps v. United States, 133 S. Ct. 2276, 2281 (2013).

Both parties agree that only a conviction under the "bodily injury"

portion of the Maine statute would qualify as a "crime of domestic

violence" and render Peralta Sauceda ineligible for cancellation

of removal.        Both parties agree that the only Shepard documents

that the State of Maine maintained are the criminal complaint and

the judgment reflecting his guilty plea.           Both parties agree that

the Shepard documents that exist are unable to help identify the

prong   of   the    Maine   statute   under   which    Peralta   Sauceda    was

convicted.

             In    Moncrieffe,   the     Supreme      Court   established     a

presumption that dictates the outcome of this case: "Because we

examine what the state conviction necessarily involved, not the


                                      - 9 -
facts underlying the case, we must presume that the conviction

'rested   upon   [nothing]   more   than   the   least   of   th[e]   acts'

criminalized, and then determine whether even those acts are

encompassed by the generic federal offense."         Moncrieffe, 133 S.

Ct. at 1684 (alterations in original) (quoting Johnson v. United

States, 559 U.S. 133, 137 (2010)); see also Descamps, 133 S. Ct.

at 2284 ("[A] conviction based on a guilty plea can qualify as [a

predicate offense] only if the defendant 'necessarily admitted

[the] elements of the generic offense.'" (third alteration in

original) (quoting Shepard, 544 U.S. at 26)).

           The Court in Moncrieffe explained that this "least of

the acts" presumption is not absolute and that in the case of a

divisible statute, like the Maine assault statute, "a court may

determine which particular offense the noncitizen was convicted of

by" looking to Shepard documents, which may rebut the presumption.

Moncrieffe, 133 S. Ct. at 1684.            But where, as here, it is

undisputed that all the Shepard documents have been produced and

that they shed no light on the nature of the offense or conviction,

the Moncrieffe presumption must stand since it cannot be rebutted.8

We must defer to this presumption.


     8    Because all the Shepard documents were produced, and, as
a matter of law, the Moncrieffe presumption cannot be rebutted, we
need not reach the nettlesome question, posed in our order granting
rehearing, of whether and to what extent the government bears a
burden of production under 8 C.F.R. § 1240.8(d) in the case of a
divisible state statute. See Sauceda, 2016 WL 760293, at *1.


                                - 10 -
             The government responds that there is still uncertainty

as to whether Peralta Sauceda, in fact, pleaded guilty to a "crime

of domestic violence," and that he has not met the burden of

proving that he did not.9        While there may be factual uncertainty

on this score, that is not the question that Congress or the

Supreme Court has directed us to answer.               Rather, the question is

whether, as a matter of law, under these precise circumstances,

Peralta Sauceda was "convicted of" a "crime of domestic violence."

See   8    U.S.C.   §   1229b(b)(1)(C).     As    to    this   question,   given

Moncrieffe, there is no uncertainty.             We hold that since all the

Shepard documents have been produced and the modified categorical

approach using such documents cannot identify the prong of the

divisible Maine statute under which Peralta Sauceda was convicted,

the unrebutted Moncrieffe presumption applies, and, as a matter of

law, Peralta Sauceda was not convicted of a "crime of domestic

violence."10


      9   The IJ took testimony from Peralta Sauceda and Hattie,
and, in her July 29, 2009, decision, the IJ determined from her
own evaluation of the testimony that Peralta Sauceda "knew at the
time he attacked his wife that she was suffering from severe back
and neck problems, and despite his own emotional state, pushed her
to the ground and dragged her around."     In a later decision on
September 9, 2009, the IJ similarly found that Peralta Sauceda
"did, in fact, physically assault and batter his wife by 'grabbing
her by the arms or by the hair and dragging her to the ground.'"

      10  Our approach and outcome is consistent with Almanza-
Arenas v. Lynch, 815 F.3d 469, 487–89 (9th Cir. 2016) (en banc)
(Watford, J., concurring); Thomas v. Att'y Gen. of U.S., 625 F.3d
134, 141–48 (3d Cir. 2010); Martinez v. Mukasey, 551 F.3d 113,


                                   - 11 -
                                  III.

            The government raises several arguments in support of

its position.    Supreme Court precedent compels us to reject them

all.

            The government asserts, without any on-point authority

in support, that "Shepard-approved documents do not exhaust the

range of evidence the agency may consider in assessing whether an

alien has been 'convicted' of a disqualifying offense."                   It

suggests that Peralta Sauceda could have submitted testimony from

his lawyer, his wife (the victim), or the judge who accepted his

plea to ascertain what offense was charged and pleaded to in the

state court.

            We disagree. As the Supreme Court in Descamps repeatedly

observed in referring to "a restricted set of materials," 133 S.

Ct. at 2284, and "approved documents," id. at 2285 n.2, the

universe   of   information   capable    of   narrowing   the   offense   of

conviction under a divisible statute does not include in any other

relevant context the type of information to which the government

points.    We have not been presented with any compelling reason to

expand that universe in this context.         The type of information the


121–22 (2d Cir. 2008). But see Syblis v. Att'y Gen. of U.S., 763
F.3d 348, 355–57 (3d Cir. 2014); Sanchez v. Holder, 757 F.3d 712,
720 & n.6 (7th Cir. 2014); Young v. Holder, 697 F.3d 976, 988–90
(9th Cir. 2012) (en banc); Salem v. Holder, 647 F.3d 111, 116–20
(4th Cir. 2011); Garcia v. Holder, 584 F.3d 1288, 1289–90 (10th
Cir. 2009).


                                 - 12 -
government wishes to interject into the process would turn an

essentially objective, legal assessment of court documents into a

factual, credibility-assessing adjudicative minitrial.11

          The        government's    proposal    here     echoes    a     similar

government proposal squarely rejected by the Supreme Court in

Moncrieffe.           There,   the    government        had   proposed       that

"[n]oncitizens should be given an opportunity during immigration

proceedings     to     demonstrate    that     their    predicate       marijuana

distribution convictions involved only a small amount of marijuana

and no remuneration, just as a federal criminal defendant could do

at sentencing."       Moncrieffe, 133 S. Ct. at 1690.         To be sure, the

government here is making the finer point that the agency may look

to non-Shepard documents to determine what the petitioner pleaded

guilty to during the state court proceedings, not to determine the

facts of his underlying crime. In the end, though, these analogous

proposals implicate the same set of concerns.                     As the Court

recognized,     "[t]he     categorical       approach    serves     'practical'

purposes: It promotes judicial and administrative efficiency by

precluding the relitigation of past convictions in minitrials




     11   Our holding here is consistent with prior First Circuit
immigration cases. See Villanueva v. Holder, 784 F.3d 51, 54 (1st
Cir. 2015) (citing Shepard, 544 U.S. at 26, and noting that under
the modified categorical approach only "certain documents in the
record of conviction" can be examined); Berhe v. Gonzales, 464
F.3d 74, 85 (1st Cir. 2006).


                                     - 13 -
conducted long after the fact."12       Id. (citing Chambers v. United

States, 555 U.S. 122, 125 (2009)).          Much like the government's

proposal in Moncrieffe, the government's proposal here that courts

consider non-Shepard evidence of what occurred at the entry of the

plea "would have our Nation's overburdened immigration courts

entertain and weigh testimony . . . .            And, as a result, two

noncitizens, each 'convicted of' the same offense, might obtain

different   aggravated    felony   determinations    depending    on   what

evidence remains available or how it is perceived by an individual

immigration judge."       Id.   As the Supreme Court noted, "[t]he

categorical    approach   was   designed    to   avoid   this   'potential

unfairness.'"13    Id. (quoting Taylor v. United States, 495 U.S.

575, 601 (1990)).

            The government also argues that Moncrieffe's presumption

is inapplicable in this context because by its terms Moncrieffe is




     12   We share the concern expressed in Shepard that expanding
the universe of documents that may be considered "amounts to a
call to ease away from the Taylor conclusion, that respect for
congressional intent and avoidance of collateral trials require
that evidence of generic conviction be confined to records of the
convicting court approaching the certainty of the record of
conviction in a generic crime State."     Shepard, 544 U.S. at 23
(citing Taylor v. United States, 495 U.S. 575 (1990)).

     13   The conclusion reached in Moncrieffe was not a novel
one. Indeed, the Court's favorable citation to United States ex
rel. Mylius v. Uhl, 210 F. 860, 862–63 (2d Cir. 1914), see
Moncrieffe, 133 S. Ct. at 1690, belies any notion that the
justifications for restricting courts to the record of conviction
in the immigration context are of recent vintage.


                                   - 14 -
a case about removability vel non, and is not concerned with

exceptions to removability.         It argues that while it is true that

the government always bears the burden of proving removability,

see 8 U.S.C. § 1229a(c)(3)(A), the issue here of eligibility for

relief from removal is different and the burden, by statute, is on

the petitioner, see id. § 1229a(c)(4)(A); see also 8 C.F.R.

§ 1240.8(d).

             We cannot agree.       First, the categorical approach --

with the help of its modified version -- answers the purely "legal

question of what a conviction necessarily established."                      See

Mellouli v. Lynch, 135 S. Ct. 1980, 1987 (2015).                As a result, the

question of the allocation of the burden of proof when the complete

record of conviction is present does not come into play.                 Second,

Moncrieffe explicitly stated that its "analysis is the same in

both contexts," i.e., removal and cancellation of removal.                 133 S.

Ct. at 1685 n.4.     This conclusion follows from the fact that the

underlying    statutory   language     is    the   same    in    both   contexts.

Congress has directed the courts to determine what the alien was

"convicted of."    Compare 8 U.S.C. § 1229b(b)(1)(C) ("The Attorney

General may cancel removal of . . . an alien who is inadmissible

or deportable from the United States if the alien . . . (C) has

not   been   convicted    of   an   offense    under      section   1182(a)(2),

1227(a)(2), or 1227(a)(3) of this title." (emphasis added)), with

8 U.S.C. § 1227(a)(2)(E)(i) ("Any alien who at any time after


                                    - 15 -
admission is convicted of a crime of domestic violence . . . is

deportable." (emphasis added)).           As the Court in Moncrieffe noted,

"'[c]onviction' is 'the relevant statutory hook.'"               133 S. Ct. at

1685 (quoting Carachuri-Rosendo v. Holder, 560 U.S. 563, 580

(2010)).      And   what   the    Court   made   clear    was   that   the   term

"convicted of" has a formal, legal definition governed by the

presumption explained above, and that definition is uniform as

between the removal and cancellation of removal provisions of the

Immigration and Nationality Act ("INA").

           The      government     also     argues   that       Moncrieffe    is

inapplicable because it focused on the categorical approach, not

the modified categorical approach, and so its holding is not on

point.   We conclude that Supreme Court precedent precludes us from

accepting this argument.         The modified categorical approach is not

a wholly distinct inquiry.            Rather, as the Supreme Court has

explained, it "merely helps implement the categorical approach

when a defendant was convicted of violating a divisible statute.

The modified approach thus acts not as an exception, but instead

as a tool."      Descamps, 133 S. Ct. at 2285.           Whether a statute of

conviction is divisible or not does not change the basic character

of the inquiry; the question remains a legal one to which the

presumption from Moncrieffe -- if unrebutted by Shepard documents

-- still applies.




                                     - 16 -
           The government, stressing the limited number of green

cards Congress has authorized the immigration agency to issue in

a given year for aliens granted cancellation of removal and

adjustment of status, see 8 U.S.C. § 1229b(e)(1),14 emphasizes the

fact that Congress intentionally placed the burden of proof on

aliens seeking what the government calls its "largesse" in the

form of discretionary relief from removal.    Our holding does not

relieve an alien applying for relief of any burden.     Indeed, an

alien who is found, as a matter of law, not to have been convicted

of a disqualifying offense must still prove continuous physical

presence, good moral character, and "exceptional and extremely

unusual hardship."   See id. § 1229b(b)(1)(A), (B), (D); see also

Moncrieffe, 133 S. Ct. at 1692 ("[H]aving been found not to be an

aggravated felon, the noncitizen may seek relief from removal . . .

assuming he satisfies the other eligibility criteria.").

           The Supreme Court in Moncrieffe laid out the framework

for determining whether an alien was "convicted of" a disqualifying

offense.   It expressly recognized that the relevant statutory

language in the INA is identical in the removal and cancellation

of removal contexts, and so the "analysis is the same in both



     14   "[T]he Attorney General may not cancel the removal and
adjust the status under this section, nor suspend the deportation
and adjust the status under section 1254(a) of this title (as in
effect before September 30, 1996), of a total of more than 4,000
aliens in any fiscal year." 8 U.S.C. § 1229b(e)(1).


                              - 17 -
contexts."      Moncrieffe, 133 S. Ct. at 1685 n.4.            And we have

rejected the government's earlier arguments that Moncrieffe is

inapplicable to the circumstances presented by this case, finding

instead that Moncrieffe controls.         The government urges that this

outcome is simply not what Congress intended.           If the government

is right, and Congress intended otherwise and disagrees with

Moncrieffe, then Congress can overrule the Court and change how

the courts are to analyze these cases.          We, however, cannot.

                                    IV.

              Accordingly, we grant the petition for review, vacate

the   BIA's    decision,   and   remand    to   the   agency   for   further

proceedings consistent with this opinion.




                                  - 18 -
