Dionicio Cadiz Tangonan v. ERIC H. HOLDER, Attorney General

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DIONICIO CADIZ TANGONAN,
Petitioner,
v.
ERIC H. HOLDER, Attorney General,
Respondent.
No. 07-71588
Agency No. A043-211-911
MEMORANDUM*
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.
FILED
SEP 08 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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

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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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