Ouch v. Holder

321 F. App'x 653

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 7, 2009
• Docket: No. 04-71037
• Status: Published

Opinion

MEMORANDUM

**

Bounrit Ouch, a native and citizen of Cambodia, petitions for review of the Board of Immigration Appeals’ order summarily affirming an immigration judge’s (“IJ”) removal order. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review de novo whether an offense is an aggravated felony. Penuliar v. Mukasey, 528 F.3d 603, 608 (9th Cir.2008). We grant the petition for review and remand.

Although Ouch's opening brief does not raise the issue of his removability, we retain discretion to review it "because the government briefed it, and thus suffers no prejudice from [the petitioner's] failure to properly raise the issue." Singh v. Ashcroft, 361 F.3d 1152, 1157 n. 3 (9th Cir.2004).

The agency's decisions preceded oui~ determination in United States v. Vidal, 504 F.3d 1072, 1086 (9th Cir.2007) (en bane), that a conviction under Cal. Vehicle Code § 10851(a) is not categorically an aggravated felony. Moreover, the record of conviction in this case does not establish the factual predicate for Ouch's plea. See Penuliar, 528 F.3d at 612-14. We therefore grant the petition for review, vacate Ouch's removal order, and remand for further proceedings consistent with this disposition. See Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1079-80 (9th Cir.2007). We need not address Ouch's remaining contentions.

Ouch’s counsel is cautioned that his opening brief, which lacks record citations, does not meet this court’s standards. See generally Fed. RApp. P. 28; 9th Cir. R. 28-2.8.

PETITION FOR REVIEW GRANTED; REMANDED.

This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.