Lemaine v. Holder

Filing

Case: 08-60286

Document: 00511204951

Page: 1

Date Filed: 08/16/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 08-60286 August 16, 2010 Lyle W. Cayce Clerk J E R R Y LEMAINE, P e titio n e r v. E R I C H. HOLDER, JR., U. S. ATTORNEY GENERAL, R espon dent

P e tit io n for Review of an Order of the B o a r d of Immigration Appeals B I A No. A074 239 713

B e fo r e SMITH, GARZA, and CLEMENT, Circuit Judges. P E R CURIAM:* J e r r y Lemaine, a native of Haiti and permanent lawful resident of the U n ite d States, petitions this court for review of the order issued by the Board of I m m ig r a t io n Appeals (BIA) affirming the Immigration Judge's (IJ) final order o f removal and the IJ's determination that Lemaine was ineligible for c a n c e lla t io n of removal. In his petition for review, Lemaine, who has two

m a r iju a n a violations in New York,1 contends that the BIA erred by treating his
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Lemaine contests whether the 2000 disposition should be considered a "conviction" for immigration purposes. We assume without deciding that it should.
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Case: 08-60286

Document: 00511204951 Page: 2 No. 08-60286

Date Filed: 08/16/2010

s e c o n d violation as equivalent to an aggravated felony under the recidivist p r o v is io n s of the Controlled Substances Act. See 21 U.S.C. § 844(a). The BIA b e lie v e d this result was compelled by our decision in Carachuri-Rosendo v. H o ld e r , 570 F.3d 263, 265)68 (5th Cir. 2009). W h ile the instant case was pending, the Supreme Court granted certiorari in Carachuri-Rosendo, and ultimately reversed this court's decision. See

C a r a c h u r i-R o s e n d o v. Holder, 130 S. Ct. 2577 (2010). On remand, the panel is s u e d a published opinion, which held that: B e c a u s e the state did not enhance [petitioner's] conviction based on t h e fact of a prior conviction, "he has not been `convicted' under § 1 2 2 9 b (a )(3 ) of a `felony punishable' as such `under the Controlled S u b s t a n c e s Act,' 18 U.S.C. § 924(c)(2). Carachuri-Rosendo v. Holder, No. 07-61006, 2010 WL 3064479, at *2 (5th Cir. A u g . 6, 2010) (per curiam) (quoting Carachuri-Rosendo v. Holder, 130 S. Ct. 2 5 7 7 , 2589 (2010)). Accordingly, we GRANT the petition for review and

R E M A N D to the BIA for further proceedings in light of the opinion of the S u prem e Court and the resulting panel opinion on remand in

C a r a c h u r i-R o s e n d o . We intimate no view as to what action the BIA should take o n remand.

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