In a matter of first impression in this circuit, the Ninth Circuit found that the BIA could consider a sentence enhancement in determining whether a non-aggravated felony conviction was nonetheless a particularly serious crime that would bar withholding of removal. Konou had argued it could not because Ninth Circuit precedent holds a sentencing enhancement cannot be considered when determining if a conviction is an aggravated felony. The court pointed out that a conviction does not need to meet the aggravated felony definition in order to be deemed particularly serious. The particularly serious crime determination is a discretionary case-by-case determination.