
    Bounrit OUCH, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
    No. 04-71037.
    United States Court of Appeals, Ninth Circuit.
    Submitted March 18, 2009.
    
    Filed April 7, 2009.
    
      Roman P. Mosqueda, Esq., Los Angeles, CA, for Petitioner.
    Regional Counsel, Western Region Immigration & Naturalization Service, Lagu-na Niguel, CA, District Director, Immigration & Naturalization Service, Phoenix, AZ, Nelda C. Ackerman, DOJ-U.S. Department of Justice Civil Div./Office of Immigration Lit., Washington, DC, Leslie McKay Fax, for Respondent.
    Before: LEAVY, HAWKINS, and TASHIMA, Circuit Judges.
    
      
       The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   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.
     