Kurt Garbutt v. Eric Holder, Jr.

Filing 4

Opinion

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NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 On Remand from the Supreme Court* Decided September 22, 2010 Before JOHN L. COFFEY, Circuit Judge TERENCE T. EVANS, Circuit Judge ANN CLAIRE WILLIAMS, Circuit Judge No. 084188 KURT GARBUTT, Petitioner, v. No. A036991429 ERIC H. HOLDER, JR., Attorney General of the United States, Respondent. Petition for Review of an Order of the Board of Immigration Appeals. O R D E R Kurt Garbutt, a citizen of Belize, was found to be ineligible for cancellation of removal under 8 U.S.C. 1229b(a)(3) after an immigration judge determined, applying this courts precedent in Fernandez v. Mukasey, 544 F.3d 862 (7th Cir. 2008), that his second state conviction for cocaine possession constituted an aggravated felony, as defined in 8 U.S.C. 1101(a)(43)(B). After the Board of Immigration Appeals (BIA) affirmed the order of the judge, Garbutt After examining the briefs and record, we have concluded that oral argument is unnecessary. See F. R. App. P. 34(a)(2)(C). * No. 084188 Page 2 petitioned for review arguing that we should overrule Fernandez. We declined to do so and denied his petition. See Garbutt v. Holder, 351 F. App'x. 106, 11011 (7th Cir. 2009) (citing Fernandez and United States v. PachecoDiaz, 506 F.3d 545 (7th Cir. 2007)). Garbutt subsequently filed a petition for writ of certiorari with the Supreme Court. The writ was granted. The Supreme Court vacated our judgment and remanded Garbutt's petition for further consideration in light of its recent decision in CarachuriRosendo v. Holder, 560 U.S. , 130 S. Ct. 2577 (2010). See Garbutt v. Holder, 130 S. Ct. 3460, 3461 (2010). Pursuant to Circuit Rule 54, we invited the parties to present their positions as to the action we should take. Both parties agree that we should remand the case to the BIA to revisit its denial of cancellation of removal because CarachuriRosendo effectively overturned our relevant holdings in Fernandez and PachecoDiaz. We also agree. Under CarachuriRosendo, Garbutt's second state possession conviction may no longer be considered an aggravated felony under 8 U.S.C. 1101(a)(43)(B) because it was not based on the fact of a prior conviction. Thus, he is not ineligible for cancellation of removal under 8 U.S.C. 1229b(a)(3). Accordingly, the petition for review is GRANTED, and the case is REMANDED to the BIA for further proceedings consistent with this opinion.

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