* 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 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT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 APPEALS2 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 aggr avated 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 consiste d 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 br oader 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 cat egorical 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 the3 judgment entered by the court, the mittimus, and the opinion of the Hawaii Supreme Court on appeal. However, th e 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 orto 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 b een convicted of the predicate offense.
The government also contends that re ference to the original three-count indictment should suffice. However, th e government withdrew one count and the petitioner was acquitted of all other charges specified in the indictment. The conviction was for a lesser-included offe nse 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 th an 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 statements4 made in the administrative record when using the modi fied 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.