noting that the “BIA is not limited to only those documents which a court applying the modified categorical approach may review,” and remanding to the BIA so that it could determine, in the first instance, what evidence it may consider under the Nijhawan standard
How later courts described this case
- noting that the “BIA is not limited to only those documents which a court applying the modified categorical approach may review,” and remanding to the BIA so that it could determine, in the first instance, what evidence it may consider under the Nijhawan standard
- holding that unlike in criminal proceedings, “the BIA is not limited to only those documents which a court applying the modified categorical approach may review”
- acknowledging that Nijhawan permits an inquiry beyond the four corners of the record of conviction
- reconsidering initial opinion(s) in light of subsequent circuit and Supreme Court decisions
Written by the judges who cited it.
The opinion
Dissent to Order by Judge GRABER; Opinion by Judge O’SCANNLAIN.
ORDER
The opinion filed in this case on January 27, 2010, and published at 593 F.3d 979 , is withdrawn. A new opinion is filed contemporaneously with the filing of this order.
The panel has voted unanimously to deny the petition for rehearing. Judges O’Scannlain and Callahan have voted to deny the petition for rehearing en banc, and Judge Leavy has so recommended.
The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc, and the matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35.
The petition for rehearing and the petition for rehearing en banc are DENIED. No further petitions for rehearing or petitions for rehearing en banc will be entertained.