Young v. Holder

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Young v. Holder

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Case: 08-60278

Document: 00511194017

Page: 1

Date Filed: 08/04/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
August 4, 2010 N o . 08-60278 S u m m a r y Calendar Lyle W. Cayce Clerk

L Y N D O N CHRISTOPHER YOUNG, also known as Lyndon Young, a ls o known as Lyndon Griffith P e titio n e r v. E R I C H HOLDER, JR., U.S. ATTORNEY GENERAL R espon dent

P e t itio n for Review of an Order of the Board of Immigration Appeals B I A No. A35 750 048

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES B e fo r e HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges. P E R CURIAM:* L y n d o n Christopher Young petitioned for review of an order of the Board o f Immigration Appeals (BIA) finding him ineligible for cancellation of removal. We denied the petition. The Supreme Court vacated our decision and remanded

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

*

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Case: 08-60278

Document: 00511194017

Page: 2

Date Filed: 08/04/2010

No. 08-60278 t o this court for further consideration in light of its ruling in Carachuri-Rosendo v . Holder, 130 S. Ct. 2577 (2010). Y o u n g , a citizen of Trinidad and Tobago, was admitted as a lawful p e r m a n e n t resident of the United States in March 1976. Removal proceedings w e r e instituted. Young conceded removability based on his guilty plea in 1996 fo r unlawful possession of marijuana and third degree criminal possession of a fir e a r m , and also on his guilty plea in 2006 for criminal possession of marijuana in the fifth degree. He applied for asylum, for withholding of removal and for r e lie f under the Convention Against Torture. The Immigration Judge found Y o u n g ineligible for cancellation of removal because his second marijuana c o n v ic t io n qualified as an aggravated felony under the Immigration and N a tio n a lit y Act. The BIA affirmed the order of removal. We denied Young's petition for review because his 2006 conviction q u a lifie d as an aggravated felony despite that he had not been prosecuted as a r e c id iv is t under New York law. Young v. Holder, 344 F. App'x 944 (5th Cir. 2 0 0 9 ) . We relied on our holding in Carachuri-Rosendo, 570 F.3d 263 (5th Cir. 2 0 0 9 ). The Supreme Court has now reversed Carachuri-Rosendo, holding that " w h e n a defendant has been convicted of a simple possession offense that has not b e e n enhanced based on the fact of a prior conviction, he has not been `convicted' u n d e r [21 U.S.C.] § 1229b(a)(3) of a `felony punishable' as such `under the C o n t r o lle d Substances Act,' 18 U.S.C. § 924 (c)(2)." Carachuri-Rosendo, 130 S. C t . at 2589. The defendant must have been "actually convicted of a crime that is itself punishable as a felony under federal law." Id. (emphasis in original). Using this definition, Young was not "actually convicted" under the New Y o r k state recidivist statute. Consequently, the BIA's holding that he was, in r e lia n c e on our now reversed caselaw, was in error. We VACATE and REMAND to allow Young to pursue cancellation of r e m o v a l in light of the Supreme Court's ruling in Carachuri-Rosendo. 2