In a petition for review of the BIA's order removing petitioner from the U.S. for committing an aggravated felony, the petition is granted where: 1) petitioner was not charged, either explicitly or implicitly, with an aggravated felony as defined by 8 U.S.C. section 101(a)(43)(U); 2) subsection U is not a necessarily included offense under subsection M of the same statute; and 3) petitioner therefore was denied her due process rights of notice and an opportunity to be heard when the BIA sua sponte found her removable on the basis of her conviction for an aggravated felony as defined by subsection U.
Argued: September 24, 2009
Decided: December 8, 2009
Opinion by Judge Walker
Edward E. Wiggers and John S. Hogan, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, DC