Case: 08-60286 Document: 00511204951 Page: 1 Date Filed: 08/16/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 16, 2010
No. 08-60286
Lyle W. Cayce
Clerk
JERRY LEMAINE,
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. A074 239 713
Before SMITH, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
Jerry Lemaine, a native of Haiti and permanent lawful resident of the
United States, petitions this court for review of the order issued by the Board of
Immigration Appeals (BIA) affirming the Immigration Judge’s (IJ) final order
of removal and the IJ’s determination that Lemaine was ineligible for
cancellation of removal. In his petition for review, Lemaine, who has two
marijuana 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
1
Lemaine contests whether the 2000 disposition should be considered a “conviction”
for immigration purposes. We assume without deciding that it should.
Case: 08-60286 Document: 00511204951 Page: 2 Date Filed: 08/16/2010
No. 08-60286
second violation as equivalent to an aggravated felony under the recidivist
provisions of the Controlled Substances Act. See 21 U.S.C. § 844(a). The BIA
believed this result was compelled by our decision in Carachuri-Rosendo v.
Holder, 570 F.3d 263, 265)68 (5th Cir. 2009).
While the instant case was pending, the Supreme Court granted certiorari
in Carachuri-Rosendo, and ultimately reversed this court’s decision. See
Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010). On remand, the panel
issued a published opinion, which held that:
Because the state did not enhance [petitioner’s] conviction based on
the fact of a prior conviction, “he has not been ‘convicted’ under §
1229b(a)(3) of a ‘felony punishable’ as such ‘under the Controlled
Substances Act,’ 18 U.S.C. § 924(c)(2).
Carachuri-Rosendo v. Holder, No. 07-61006, 2010 WL 3064479, at *2 (5th Cir.
Aug. 6, 2010) (per curiam) (quoting Carachuri-Rosendo v. Holder, 130 S. Ct.
2577, 2589 (2010)). Accordingly, we GRANT the petition for review and
REMAND to the BIA for further proceedings in light of the opinion of the
Supreme Court and the resulting panel opinion on remand in
Carachuri-Rosendo. We intimate no view as to what action the BIA should take
on remand.
2