Opinion
No. 08-60586 Summary Calendar.
June 23, 2010.
Petition for Review of an Order of the Board of Immigration Appeals, BIA No. A90 395 622
Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
Treating the Petition for Rehearing En Banc as a Petition for Panel Rehearing, the Petition for Panel Rehearing is GRANTED.
Morgan-White petitioned this court for review of the decision of the Board of Immigration Appeals dismissing his appeal and affirming the immigration judge's order that Morgan-White is ineligible for cancellation of removal pursuant to 8 U.S.C. § 1229b(a) because he committed an aggravated felony. This court affirmed the Board's decision, finding Morgan-White's appeal foreclosed by our decision in Carachuri-Rosendo v. Holder. The Supreme Court has since reversed that decision, rejecting this court's "hypothetical approach" and holding that "the defendant must . . . have been actually convicted of a crime that is itself punishable as a felony under federal law." As in Carachuri-Rosendo, Morgan-White was not actually convicted under the state recidivist statute. In accordance with the Supreme Court's ruling, we now REVERSE and REMAND. The outstanding motion is moot.
570 F.3d 263 (5th Cir. 2009).
Carachuri-Rosendo v. Holder, ___ U.S. ___, 130 S.Ct. 2577, 177 L.Ed.2d 68 (2010).