Nicola Miller v. Eric Holder, Jr.


UNPUBLISHED OPINION FILED. [11-60682 Reversed, Vacated and Remanded] Judge: FPB , Judge: PRO , Judge: LHS Mandate pull date is 04/07/2014 [11-60682]

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Case: 11-60682 Document: 00512533708 Page: 1 Date Filed: 02/14/2014 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED February 14, 2014 No. 11-60682 Lyle W. Cayce Clerk NICOLA MILLER, Petitioner, v. ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL, Respondent. Petition for Review of an Order of the Board of Immigration Appeals BIA No. A079 088 319 Before BENAVIDES, OWEN, and SOUTHWICK, Circuit Judges. PER CURIAM:* Nicola Miller petitions this Court for review of a Board of Immigration Appeals (“BIA”) removal order. An immigration judge found Miller removable pursuant to Immigration and Nationality Act (“INA”) § 237(a)(2)(A)(ii), as an alien twice convicted of a crime involving moral turpitude. The BIA affirmed. The INA affords this Court jurisdiction to review final orders of removal. See 8 U.S.C. § 1252(b). We review de novo the classification of a state conviction as a crime involving moral turpitude. Hyder v. Keisler, 506 F.3d 388, 390 (5th * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Case: 11-60682 Document: 00512533708 Page: 2 Date Filed: 02/14/2014 No. 11-60682 Cir. 2007). In classifying Miller’s conviction of grand theft, FLA. STAT. § 812.014(2)(a), (c)(1), as a crime of moral turpitude, the immigration judge looked beyond the conviction record to a police report, as permitted under the analytical framework proposed by the Attorney General in Matter of SilvaTrevino, 24 I. & N. Dec. 687 (A.G. 2008). This Court, however, recently held that the Silva-Trevino framework—insofar as it permits extrinsic examination of documents outside of the conviction record—conflicts with the unambiguous language of the INA. See Silva-Trevino v. Holder, No. 11-60464, --- F.3d ---- (5th Cir. 2014). As a consequence, that analytical method does not displace Circuit precedent, which precludes examination of the police report. See Amouzadeh v. Winfrey, 467 F.3d 451, 455 (5th Cir. 2006) (describing the Circuit’s modifiedcategorical approach); United States v. Murillo-Lopez, 444 F.3d 337, 340 (5th Cir. 2006) (listing the documents made available for review by Shepard v. United States, 544 U.S. 13 (2005)) (other citations omitted). Accordingly, we GRANT Miller’s petition, VACATE the BIA’s decision, and REMAND for further proceedings. 2

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