FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

VIRGILIO ANAYA-ORTIZ,                           No. 03-74666
                            Petitioner,
                                                  Agency No.
               v.
                                                A092-962-367
ERIC H. HOLDER, JR., Attorney
                                                 ORDER AND
General,
                                                   OPINION
                      Respondent.
                                          
          On Petition for Review of an Order of the
               Board of Immigration Appeals

                    Argued and Submitted
             August 6, 2007—Pasadena, California

                     Filed January 25, 2010

   Before: Marsha S. Berzon and Sandra S. Ikuta, Circuit
  Judges, and James K. Singleton,* Senior District Judge.

                     Opinion by Judge Ikuta




   *The Honorable James K. Singleton, United States District Judge for
the District of Alaska, sitting by designation.

                                1355
1358                ANAYA-ORTIZ v. HOLDER




                         COUNSEL

Gary Finn, Indio, California, for the petitioner.

Jennifer J. Keeney and Melissa Neiman-Kelting, Washington,
D.C., for the respondent.


                           ORDER

  The opinion filed on January 27, 2009, and appearing at

(9th Cir. 2009) is withdrawn. The superseding
opinion and memorandum disposition will be filed concur-
rently with this order.

  Further petitions for rehearing or rehearing en banc may
not be filed.
                        ANAYA-ORTIZ v. HOLDER                          1359
                               OPINION

IKUTA, Circuit Judge:

   Virgilio Anaya-Ortiz (Anaya), a native and citizen of Mex-
ico, petitions for review of a decision by the Board of Immi-
gration Appeals (BIA) dismissing his appeal and ordering him
removed to Mexico. We deny the petition.

                                     I

   On August 29, 2002, the former Immigration and Natural-
ization Service (INS) placed Anaya in removal proceedings.
The INS charged that Anaya was removable due to his con-
viction for the crime of possession of a firearm by a felon, a
violation of California Penal Code § 12021(a)(1). At Anaya’s
initial removal hearing, the immigration judge (IJ) agreed
with the INS’s position and found Anaya removable as
charged.

  Anaya then sought two forms of relief from removal: can-
cellation of removal under 8 U.S.C. § 1229b and withholding
of removal under 8 U.S.C. § 1231(b)(3)(A).1 The IJ deter-
mined that Anaya was ineligible for cancellation of removal
because Anaya had been convicted of an aggravated felony,
but granted Anaya a continuance to allow him to apply for
withholding of removal.

  After receiving Anaya’s application for withholding of
removal, the IJ reconvened a hearing on March 10, 2003 to
determine Anaya’s eligibility. An alien is ineligible for with-
holding of removal if “the alien, having been convicted by a
  1
    Section 1231(b)(3)(A) provides that “the Attorney General may not
remove an alien to a country if the Attorney General decides that the
alien’s life or freedom would be threatened in that country because of the
alien’s race, religion, nationality, membership in a particular social group,
or political opinion.”
1360                  ANAYA-ORTIZ v. HOLDER
final judgment of a particularly serious crime is a danger to
the community of the United States.” 8 U.S.C.
§ 1231(b)(3)(B)(ii). At the hearing, Anaya admitted that he
had pleaded guilty to being a felon in possession of a firearm
on March 21, 2001. The predicate offense to his felon-in-
possession conviction was a prior conviction for driving under
the influence in violation of section 23153(b) of the California
Vehicle Code, for which he was sentenced to one year in jail.
According to his testimony before the IJ, Anaya drove into a
house while driving drunk. The collision caused part of the
house’s sheetrock wall to collapse on an elderly woman who
lived inside, causing injuries to her shoulder and leg.

   On the basis of Anaya’s testimony regarding his drunk
driving conviction under California Vehicle Code § 23153(b),
the IJ held that Anaya had been convicted of a “particularly
serious crime” and was therefore ineligible for withholding of
removal under 8 U.S.C. § 1231(b)(3)(B)(ii). The IJ also held
that Anaya was ineligible for relief under the Convention
Against Torture (CAT), 8 C.F.R. § 1208.16-18, and ordered
him removed from the United States. Anaya appealed this
decision to the BIA. On November 21, 2003, the BIA
affirmed the IJ’s decision and dismissed Anaya’s appeal.
Anaya timely filed a petition for review.

   On appeal, Anaya argues that he is eligible for withholding
of removal on the ground that his drunk-driving conviction
does not constitute a conviction of a “particularly serious
crime” under 8 U.S.C. § 1231(b)(3)(B)(ii).2 He asserts that the
BIA made a legal error in determining Anaya’s drunk-driving
conviction was a “particularly serious crime” because it (1)
relied on the testimony Anaya gave at his removal hearing,
  2
   In a separate memorandum disposition issued today, we address
Anaya’s argument that the IJ and BIA also erred in holding that Anaya
was removable as an aggravated felon under § 1101(a)(43)(E)(ii). See
Anaya-Ortiz v. Holder, No. 03-74666, 2010 WL ___ (9th Cir. January 25,
2010).
                    ANAYA-ORTIZ v. HOLDER                   1361
and (2) failed to consider the appropriate factors giving rise
to his drunk-driving conviction. We consider each of these
alleged errors in turn.

                               II

   [1] Before considering whether the BIA erred in relying on
Anaya’s testimony at the removal hearing, we must first
determine whether we have jurisdiction to review the BIA’s
alleged error. We do not have jurisdiction to evaluate discre-
tionary decisions by the Attorney General, see 8 U.S.C.
§ 1252(a)(2)(B)(ii), and therefore lack jurisdiction over the
BIA’s ultimate determination that Anaya committed a “partic-
ularly serious crime” when he drunkenly drove his car into an
elderly victim’s house and caused part of the wall to collapse
on her. See Unuakhaulu v. Gonzales, 

, 935 (9th
Cir. 2005) (holding that “when the Attorney General decides
that the alien’s offense was a ‘particularly serious crime,’ we
lack jurisdiction to review such a decision because it is discre-
tionary”) (citation omitted). Nevertheless, we retain jurisdic-
tion to review “questions of law raised upon a petition for
review.” § 1252(a)(2)(D). While “we cannot reweigh evi-
dence to determine if the crime was indeed particularly seri-
ous, we can determine whether the BIA applied the correct
legal standard in making its determination.” Afridi v. Gon-
zales, 

, 1218 (9th Cir. 2006), overruled in part
on other grounds by Estrada-Espinoza v. Mukasey, 

, 1160 n.15 (9th Cir. 2008) (en banc). Therefore, we have
jurisdiction to review whether the BIA and IJ failed to con-
sider the appropriate factors, 

, or
relied on improper evidence, see Morales v. Gonzales, 

, 981 (9th Cir. 2007), in making the “particularly
serious crime” determination.

                               A

   Accordingly, we turn to Anaya’s argument that
§ 1231(b)(3)(B)(ii) precluded the IJ and BIA from relying on
1362                ANAYA-ORTIZ v. HOLDER
Anaya’s testimony at the removal hearing in making the
determination that Anaya had been convicted of a “particu-
larly serious crime.” Because this raises a question of statu-
tory interpretation, we “appl[y] the principles of deference
described in Chevron U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 

, 842 (1984).” INS v.
Aguirre-Aguirre, 

, 424 (1999). Under Chevron,
we first ask “whether the statute is silent or ambiguous with
respect to the specific issue before it.” 

marks omitted). If it is, then we determine whether there is
“binding agency precedent on-point (either in the form of a
regulation or a published BIA case).” Park v. Holder, 

, 623-24 (9th Cir. 2009). We will defer to that prece-
dent so long as it is “reasonable.” See 

; see also Simeonov v. Ashcroft, 

, 535 (9th
Cir. 2004) (noting that we give deference “to the BIA’s inter-
pretation [of the INA] unless that interpretation is contrary to
the plain and sensible meaning of the statute”). A “circuit
court must apply Chevron deference to an agency’s interpreta-
tion of a statute regardless of the circuit court’s contrary pre-
cedent, provided that the court’s earlier precedent was an
interpretation of a statutory ambiguity.” Gonzales v. DHS,

, 1235-36 (citing Nat’l Cable & Telecommc’ns
Ass’n v. Brand X Internet Servs., 

, 980-82
(2005)). As Brand X explained, “[o]nly a judicial precedent
holding that the statute unambiguously forecloses the agen-
cy’s interpretation, and therefore contains no gap for the
agency to fill, displaces a conflicting agency 

.

   [2] We have previously held that the INA is “silent regard-
ing the basis for determining whether a conviction is for a
particularly serious crime” under § 1231(b)(3)(B)(ii) and
therefore the BIA’s interpretation of “what an IJ may refer to
in deciding whether a prior offense is a particularly serious
crime” is entitled to deference under Chevron and Aguirre-
Aguirre. 

, 982. In Morales, we con-
sidered the BIA’s precedential interpretation of
                    ANAYA-ORTIZ v. HOLDER                   1363
§ 1231(b)(3)(B)(ii) in Matter of L–S–, 22 I. & N. Dec. 645,
651 (BIA 1999). 

We read Matter of L–S– as
holding “that the particularly serious crime determination . . .
may be made by looking only to the record of conviction and
sentencing information,” and held that the BIA’s interpreta-
tion was “based on a reasonable—and therefore permissible—
construction of the statute.” 

Therefore, we deferred
to the BIA’s interpretation, and further held that the record of
conviction “consists of a narrow, specified set of documents
that includes the state charging document, a signed plea
agreement, jury instructions, guilty pleas, transcripts of a plea
proceeding and the judgment,” and that it “may also include
any explicit factual finding by the trial judge to which the
defendant assented.” 

marks and cita-
tions omitted).

   [3] But after our decision in Morales, the BIA clarified its
interpretation of what evidence “an IJ may refer to in deciding
whether a prior offense is a particularly serious crime.” 

In its more recent precedential decision, Matter of
N–A–M–, the BIA discussed the “particularly serious crime”
determination under § 1231(b)(3)(B)(ii) and explained that

    once the elements of the offense are examined and
    found to potentially bring the offense within the
    ambit of a particularly serious crime, all reliable
    information may be considered in making a particu-
    larly serious crime determination, including the con-
    viction records and sentencing information, as well
    as other information outside the confines of a record
    of conviction.

24 I. & N. Dec. 336, 342 (BIA 2007). The BIA explained that
Morales had misconstrued its decision in Matter of L–S–. 

According to the BIA, Matter of L–S– allowed consid-
eration of the record of conviction and sentencing informa-
tion, but “did not prohibit the examination of other evidence
or indicate that only conviction records and sentencing infor-
1364                ANAYA-ORTIZ v. HOLDER
mation could be used.” 

BIA’s view, the limited
inquiry that Morales erroneously held was required by Matter
of L–S– would be inappropriate given the discretionary nature
of the “particularly serious crime” determination:

    It has been our practice to allow both parties to
    explain and introduce evidence as to why a crime is
    particularly serious or not. We see no reason to
    exclude otherwise reliable information from consid-
    eration in an analysis of a particularly serious crime
    once the nature of the crime, as measured by its ele-
    ments, brings it within the range of a “particularly
    serious” offense.

therefore upheld an IJ’s “particularly serious
crime” determination based on the facts alleged in a “State-
ment in Support of Warrantless Arrest,” as well as a judgment
of conviction for “felony menacing” under Colorado law. 

(“Under section 18-3-206(1) of the Colorado Revised
Statutes, a person ‘commits the crime of menacing if, by any
threat or physical action, he or she knowingly places or
attempts to place another person in fear of imminent serious
bodily injury.’ ”).

   As noted in Morales, we must defer to the BIA’s statutory
interpretation regarding what evidence may be considered in
deciding whether a prior offense is a particularly serious

, so long as the BIA’s interpretation “is
based on a reasonable—and therefore permissible—
construction of the statute.” 

X, we must
apply Chevron deference to the BIA’s most recent interpreta-
tion of § 1231(b)(3)(B)(ii) in Matter of N–A–M– if it is rea-
sonable, regardless of our prior decision in Morales. See

.

  [4] We now hold that the BIA’s interpretation of the evi-
dence that may be considered in a “particularly serious crime”
determination, as set forth in Matter of N–A–M–, is reason-
                    ANAYA-ORTIZ v. HOLDER                  1365
able. An IJ ordinarily considers any relevant evidence
adduced at a removal hearing, 8 C.F.R. § 1240.1(c), and noth-
ing in the language of the “particularly serious crime” provi-
sions in the INA limits the scope of permissible evidence. See
8 U.S.C. §§ 1158(b)(2)(A)(ii) & 1231(b)(3)(B)(ii). In under-
taking a case-specific consideration of whether the circum-
stances of an alien’s prior crime made it “particularly
serious,” see 

, it is reasonable for the
BIA to maintain its practice of “allow[ing] both parties to
explain and introduce evidence as to why a crime is particu-
larly serious or not.” Matter of N–A–M–, 24 I. & N. Dec. at
344. Because we are bound by Brand X to apply the BIA’s
interpretation in Matter of N–A–M–, rather than our prior
interpretation of Matter of L–S–, see 

n.7, we therefore defer to the BIA’s reasonable conclu-
sion that “all reliable information may be considered in mak-
ing a particularly serious crime determination, including the
conviction records and sentencing information, as well as
other information outside the confines of a record of convic-
tion,” Matter of N–A–M–, 24 I. & N. Dec. at 342.

                               B

   [5] We now turn to Anaya’s argument that the IJ and BIA
erred in relying solely on his removal hearing testimony in
holding that he had been convicted of a “particularly serious
crime.” We hold that such testimony is just the sort of “reli-
able information . . . outside the confines of a record of con-
viction” referred to in Matter of N–A–M–, 24 I. & N. Dec. at
342. We see no reason to question the reliability of testimony
giving rise to a “particularly serious crime” determination
where the alien is testifying under oath, see 8 C.F.R.
§ 1240.7(b), on his own behalf in order to obtain relief from
removal, and risking ineligibility for asylum and withholding
of removal should the IJ determine that he has been convicted
of a “particularly serious crime” under 8 U.S.C.
§ 1231(b)(3)(B)(ii). “Where the BIA does not make an
explicit adverse credibility finding, we must assume that [the
1366                ANAYA-ORTIZ v. HOLDER
petitioner’s] factual contentions are true.” Navas v. INS, 

, 652 n.3 (9th Cir. 2000); see also Kalubi v. Ashcroft,

, 1137 (9th Cir. 2004) (“Testimony must be
accepted as true in the absence of an explicit adverse credibil-
ity finding.”). Accordingly, we reject Anaya’s argument that
the BIA’s reliance on his own testimony was improper.

                              III

   [6] We next consider Anaya’s only other argument, that the
BIA erred by failing to consider the appropriate factors in
determining his drunk-driving conviction constituted a partic-
ularly serious crime. The BIA has previously held that deter-
mining whether a crime is particularly serious requires a case-
by-case analysis, using “such factors as the nature of the con-
viction, the circumstances and underlying facts of the convic-
tion, the type of sentence imposed, and, most importantly,
whether the type and circumstances of the crime indicate that
the alien will be a danger to the community.” In re Frentescu,
18 I. & N. Dec. 244, 247 (BIA 1982), superceded by statute
in part, 8 U.S.C. § 1253(h)(1991), as recognized in Miguel-
Miguel v. Gonzales, 

, 946 (9th Cir. 2007). Defer-
ring to this interpretation of § 1231(b)(3)(B)(ii), we have held
that these Frentescu factors constitute the applicable legal
standard for determining whether a particularly serious crime
has been committed. See 

. However,
the BIA’s “approach to determining whether a crime is partic-
ularly serious has evolved” since Matter of Frentescu. Matter
of N–A–M–, 24 I. & N. Dec. at 342. The applicable legal stan-
dard for determining whether the alien has committed a par-
ticularly serious crime no longer requires the BIA to engage
“in a separate determination to address whether the alien is a
danger to the community.” Id.; see also Kankamalage v. INS,

, 861 n.2 (9th Cir. 2003) (“Once the INS makes
a finding that an offense constitutes a particularly serious
crime, a separate determination of danger to the community
is not required.”). The BIA has promulgated this interpreta-
tion in a regulation, which provides that “an alien who has
                    ANAYA-ORTIZ v. HOLDER                    1367
been convicted of a particularly serious crime shall be consid-
ered to constitute a danger to the community.” 8 C.F.R.
§ 1208.16(d)(2). Therefore, in considering whether the BIA
has applied the correct legal standard for determining whether
a particularly serious crime has been committed, we must
refer to the Frentescu factors as subsequently modified by the
BIA.

   [7] Contrary to Anaya’s argument, the IJ here analyzed the
nature of Anaya’s drunk driving offense with sufficient refer-
ence to the Frentescu factors as modified. The IJ noted the
applicable standard, stating that “[t]o determine whether an
alien has been convicted of a particularly serious crime, the
Court weighs the facts and circumstances underlying the con-
viction, as well as the sentence imposed on the respondent.”
The IJ stated that Anaya’s first felony conviction was for
“driving under the influence of alcohol and personally inflict-
ing great bodily injury.” Finally, the IJ explained his view of
the dangerousness of the crime:

    Drunk driving results in untold loss of human poten-
    tial, not to mention the thousands of deaths each
    year. [Anaya] was driving drunk and ran into a
    stranger’s home. He hit the home with such force
    that the interior walls collapsed and injured a woman
    . . . . It strikes me that this woman, who was no
    doubt in some repose in her own home, had an
    expectation that she need not fear drunk drivers.
    [Anaya] shattered this belief by basically barging
    into her home with his car. He inflicted what the
    California statutes refer to as great bodily injury on
    her.

The BIA determined that Anaya’s testimony “establishes that
the respondent, after drinking alcohol to the point where he
was intoxicated, began driving a motor vehicle in reckless dis-
regard for persons or property whereupon he drove his car
into the home of his victim causing property damage and bod-
1368                ANAYA-ORTIZ v. HOLDER
ily injury,” and also noted that Anaya “was confined for his
criminal actions.” We therefore conclude that the IJ and BIA
did consider “the nature of the conviction, the circumstances
and underlying facts of the conviction, [and] the type of sen-
tence imposed” when reaching the conclusion that Anaya’s
conviction constituted a “particularly serious crime.” 

; accord Matter of N–A–M–, 24 I. & N. Dec.
at 342 (reciting the same factors). We reiterate that we are not
reviewing or approving the ultimate conclusion that the drunk
driving conviction under California Vehicle Code § 23153(b)
was for a particularly serious crime, because we lack the juris-
diction to do so in this context. See Delgado v. Holder, 

, 871 (9th Cir. 2009).

   [8] Anaya also argues that because “reckless disregard” is
not an element of California Vehicle Code § 23153(b), his
drunk-driving conviction cannot constitute a conviction for a
“particularly serious crime.” Although Anaya’s argument is
not entirely clear, he cites Leocal v. Ashcroft, 

(2004), which held that state DUI offenses “which either do
not have a mens rea component or require only a showing of
negligence in the operation of a vehicle” are not categorically
“crime[s] of violence” under 18 U.S.C. § 16. 

But the
categorical and modified categorical approaches articulated in
Taylor v. United States, 

(1990), are not applica-
ble to evaluating whether a crime is “particularly serious.” See
Matter of N–A–M–, 24 I. & N. Dec. at 344 (noting that no
“decision of which we are aware[ ] has ever suggested that the
categorical approach, used primarily in determining remov-
ability, is applicable to the inherently discretionary determina-
tion of whether a conviction is for a particularly serious
crime”).

   [9] We therefore conclude that the BIA applied the correct
legal standard in determining that Anaya was convicted “of a
particularly serious crime and is a danger to the community
of the United States,” making him ineligible for withholding
of removal under 8 U.S.C. § 1231(b)(3)(B)(ii).
                   ANAYA-ORTIZ v. HOLDER                 1369
                             IV

   Accordingly, we reject Anaya’s argument that the IJ and
BIA improperly determined that he had been convicted of a
“particularly serious crime.” The IJ and BIA did not err in
relying on Anaya’s testimony at the removal hearing nor did
they apply an erroneous legal standard. Because we also reject
Anaya’s argument that the IJ and BIA erred in holding that he
was not eligible for withholding of removal in a separate
memorandum disposition, see Anaya-Ortiz v. Holder, No. 03-
74666, 2010 WL ___ (9th Cir. January 25, 2010), Anaya’s
petition for review is DENIED.