Idowu v. Holder

Filing

UNPUBLISHED OPINION FILED. [08-60505 Affirmed in Part, Vacated in Part, Dismissed in Part for Lack of Jurisdiction and Remanded; 08-60622 Affirmed in Part, Vacated in Part, Dismissed in Part for Lack of Jurisdiction and Remanded; 08-60839 Affirmed in Part, Vacated in Part, Dismissed in Part for Lack of Jurisdiction and Remanded; 08-60915 Affirmed in Part, Vacated in Part, Dismissed in Part for Lack of Jurisdiction and Remanded.] Judge: PEH , Judge: JES , Judge: CH. Mandate pull date is 02/17/2011 [08-60505, 08-60622, 08-60839, 08-60915]

Idowu v. Holder

Case: 08-60505 Document: 00511332841 Page: 1 Date Filed: 12/27/2010

Doc. 0

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 08-60505 S u m m a r y Calendar December 27, 2010 Lyle W. Cayce Clerk

G B O L A H A N OWOLABI IDOWU, also known as Gdolahan Idowu, also known a s Bola Idowu, also known as Zaheed G Bola, also known as Owolabi Alabi, also k n o w n as Owolabi Bola, also known as Bola B Aladi, also known as Zaheed A la m u , also known as Idowa Bola, also known as Gbola Idowu, also known as G b o la h a n Idown, also known as Idowu, also known as Idowu Gbolahan, also k n o w n as Gblahan Idown, 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. A90 574 713

B e fo r e HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges. P E R CURIAM:* G b o la h a n Owolabi Idowu, a native and citizen of Nigeria, petitions this c o u r t for review of the Board of Immigration Appeals' (BIA) decision dismissing h is appeal of the Immigration Judge's order that he was removable pursuant to

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 08-60505 Document: 00511332841 Page: 2 Date Filed: 12/27/2010 No. 08-60505 8 U.S.C. § 1227(a)(2)(A)(iii) and ineligible for cancellation of removal pursuant t o 8 U.S.C. § 1229b(a)(3) because he committed an aggravated felony. He also p e t it io n s this court for review of the BIA's denial of his motion for r e c o n s id e r a tio n . I d o w u contends that the BIA erred when it determined that he was subject t o removal and statutorily ineligible for cancellation of removal because his s e c o n d New York conviction for criminal possession of a controlled substance in t h e seventh degree was punishable as an aggravated felony under the recidivist p r o v is io n s of the Controlled Substances Act. This court reviews the BIA's legal c o n c lu s io n s , including whether a past conviction constitutes an aggravated fe lo n y , de novo. Patel v. Mukasey, 526 F.3d 800, 802 (5th Cir. 2008). T h e BIA relied on its decision in In re Carachuri-Rosendo, 24 I&N Dec. 3 8 2 (BIA 2007), to reject Idowu's argument that his second state possession c o n v ic t io n did not constitute an aggravated felony because it was not prosecuted in state court as a recidivist offense. However, the Supreme Court has rejected t h e BIA's reasoning in that decision, holding that a second or subsequent simple p o s s e s s io n conviction is not an aggravated felony under the Immigration and N a tio n a lit y Act "when . . . the state conviction is not based on the fact of a prior c o n v ic t io n ." Carachuri-Rosendo v. Holder, 130 S. Ct. 2577, 2580 (2010). A s in Carachuri-Rosendo, the record does not reflect that Idowu was a c t u a lly convicted under New York's recidivist statute. See id. at 2586. Because t h e legal basis for the BIA's decision is no longer valid, Idowu's petition for r e v ie w , which was transferred to this court on June 6, 2008, is GRANTED, and t h e case is REMANDED to the BIA for further proceedings. Idowu's petition for r e v ie w of the BIA's denial of his motion for reconsideration, which was t r a n s fe r r e d to this court on July 16, 2008, is DENIED as moot. Idowu's petitions fo r review of the BIA's denial of his motion for reconsideration, which were t r a n s fe r r e d to this court on September 12, and September 30, 2008, are

2

Case: 08-60505 Document: 00511332841 Page: 3 Date Filed: 12/27/2010 No. 08-60505 D I S M IS S E D for lack of jurisdiction as untimely. A s h c r o ft, 330 F.3d 672, 676 (5th Cir. 2003). See Navarro-Miranda v.

3