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OMARI v. GONZALES

No. 03-61014.

419 F.3d 303 (2005)

Nyakundi John OMARI, Petitioner, v. Alberto R. GONZALES, U.S. Attorney General, Respondent.

United States Court of Appeals, Fifth Circuit.

July 25, 2005.

Attorney(s) appearing for the Case

Benjamin F. Hughes (argued), Justin S. Chang, Shearman & Sterling, Jennifer A. DePalma, O'Melveny & Myers, San Francisco, CA, for Petitioner.

Russell J.E. Verby (argued), U.S. Dept. of Homeland Sec., Thomas Ward Hussey, Director, Ernesto Horacio Molina, Jr., Jamie Marie Dowd, U.S. Dept. of Justice, Office of Immigration Litigation, Alberto R. Gonzales, U.S. Dept. of Justice, Washington, DC, Anne M. Estrada, U.S. I.N.S., Dallas, TX, Caryl G. Thompson, U.S. I.N.S., Dist. Directors Office, Attn: Joe A. Aguilar, New Orleans, LA, for Respondent.

Before GARWOOD, SMITH and CLEMENT, Circuit Judges.

GARWOOD, Circuit Judge:

Nyakundi John Omari (Omari) petitions for review of an order by the Board of Immigration Appeals (BIA) affirming the Immigration Judge's order that Omari be removed from the United States. We hold that the record does not reflect that the prior conviction on which the removal order was based was for an aggravated felony, and we accordingly grant the petition for review, vacate the removal order, and remand to the BIA.

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