Morgan-White v. Holder ( 2010 )

Case: 08-60586 Document: 00511151148 Page: 1 Date Filed: 06/23/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 23, 2010
No. 08-60586
Summary Calendar Lyle W. Cayce
Clerk
BARRINGTON BERTON MORGAN-WHITE
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. A90 395 622
ON PETITION FOR REHEARING EN BANC
(Opinion 12/15/09, 5 Cir., __________, ___________, F.3d ___________)
Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:
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.
Case: 08-60586 Document: 00511151148 Page: 2 Date Filed: 06/23/2010
No. 08-60586
This court affirmed the Board’s decision, finding Morgan-White’s appeal
foreclosed by our decision in Carachuri-Rosendo v. Holder.1 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.”2 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.
1
570 F.3d 263 (5th Cir. 2009).
2
Carachuri-Rosendo v. Holder, No. 09-60 (U.S., June 14, 2010).
2