Thompson, et al v. Holder, et al

Filing

UNPUBLISHED OPINION FILED. [08-60199 Reversed in Part, Vacated in Part, Dismissed as Moot, and Remanded.] Judge: CDK , Judge: CES , Judge: CH. Mandate pull date is 10/25/2010 [08-60199]

Thompson, et al v. Holder, et al

Doc. 0

Case: 08-60199

Document: 00511224641

Page: 1

Date Filed: 09/03/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
September 3, 2010 N o . 08-60199 S u m m a r y Calendar Lyle W. Cayce Clerk

G E O R G E ERNEST ABAIDOO THOMPSON, also known as George T hom pson ,

P e titio n e r v. E R I C H. HOLDER, JR., U. S. ATTORNEY GENERAL,

R espon dent

Petition for Review of an Order of the Board of Immigration Appeals B I A No. A42-954-981

B e fo r e KING, STEWART, and HAYNES, Circuit Judges. P E R CURIAM:* G e o r g e Ernest Abaidoo Thompson, a citizen and native of Ghana, petitions t h is court for review of a February 8, 2008, decision by the Board of Immigration A p p e a ls (Board) affirming the Immigration Judge's (IJ's) determination that he
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
*

Dockets.Justia.com

Case: 08-60199

Document: 00511224641

Page: 2

Date Filed: 09/03/2010

No. 08-60199 is ineligible for cancellation of removal. Thompson also seeks review of an April 8 , 2009, Board decision denying his motion to reopen. In the February 8 order, the Board agreed with the IJ's determination that T h o m p s o n 's 2006 New York conviction for seventh-degree criminal possession o f a controlled substance qualifies as an "aggravated felony" under 8 U.S.C. § 1 1 0 1 (a )(4 3 )(B ) because it corresponds to the recidivist provisions of 21 U.S.C. § 8 4 4 (a ) when considered with his May 2004 conviction for the same offense. The B o a r d relied on its precedent in Matter of Carachuri-Rosendo, 24 I & N Dec. 382 (B IA 2007), aff'd, Carachuri-Rosendo v. Holder, 570 F.3d 263 (5th Cir. 2009), r e v 'd , 130 S. Ct. 2577 (2010) to reject the argument that Thompson's 2006 c o n v ic t io n should not qualify as an aggravated felony because it was not p r o s e c u t e d as a recidivist offense under New York law, stating that "Fifth C ir c u it precedent does not presently impose any such requirement." Since the Board's decision, the Supreme Court has held that to qualify as a n aggravated felony, "the conduct prohibited by state law must be punishable a s a felony under federal law" and "the defendant must also have been actually c o n v ic te d of a crime that is itself punishable as a felony under federal law." C a r a c h u r i-R o s e n d o , 130 S. Ct. at 2589. Accordingly, "second or subsequent s im p le possession offenses are not aggravated felonies under § 1101(a)(43) when . . . the state conviction is not based on the fact of a prior conviction." Id. at 2 5 8 0 . In this case, though Thompson's 2006 conviction is a subsequent simple p o s s e s s io n offense, the conviction is not a crime punishable as a felony under fe d e r a l law, nor was the conviction pursuant to the state recidivist statute. In accordance with the Supreme Court's ruling, Thompson's petition for r e v ie w of the Board's February 8 order is GRANTED and the order of the BIA

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Case: 08-60199

Document: 00511224641

Page: 3

Date Filed: 09/03/2010

No. 08-60199 is VACATED and REMANDED. Thompson's petition for review of the Board's A p r il 8 order is DISMISSED AS MOOT.1

We do not address the portion of the Board's February 8 order rejecting Thompson's claims of ineffective assistance of counsel.

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