Steve Allen v. Eric Holder, Jr.

Case: 10-60799 Document: 00511532377 Page: 1 Date Filed: 07/07/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 7, 2011
No. 10-60799
Summary Calendar Lyle W. Cayce
Clerk
STEVE ANTHONY ALLEN, also known as Steve Allen,
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. A037 749 647
Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
Petitioner Steve Anthony Allen, a citizen of Jamaica, petitions for review
of the decision of the Board of Immigration Appeals (BIA) finding him removable
and ineligible for cancellation of removal because of his conviction of an
aggravated felony offense. Allen was convicted in New York of criminal sale of
marijuana in the fourth degree, pursuant to section 221.40 of the New York
Penal Law.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-60799 Document: 00511532377 Page: 2 Date Filed: 07/07/2011
No. 10-60799
Allen contends that we should apply a purely categorical approach to
determine whether his state conviction constitutes an aggravated felony, as
opposed to the modified categorical approach employed by this court. He
contends that the police-written misdemeanor complaint in the record is
inadequate under United States v. Shepard, 544 U.S. 13 (2005), to prove that he
committed criminal sale of marijuana in such a way as to qualify his conviction
as an aggravated felony. He claims that his right to due process was violated by
his transfer to Texas, as Fifth Circuit law is less favorable to him than the law
of the Second and Eleventh Circuits.
We continue to apply the modified categorical approach to classify
convictions arising under divisible statutes. See Nolos v. Holder, 611 F.3d 279,
285 (5th Cir. 2010). Allen failed to exhaust his Shepard contention before the
BIA; we lack jurisdiction to consider that contention. See Omari v. Holder, 562
F.3d 314, 317-19 (5th Cir. 2009). The documents relevant to Allen’s state court
conviction indicate that he sold marijuana for remuneration; he thus committed
an aggravated felony, rendering him removable and ineligible for cancellation
of removal. See 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1229b(a)(3); 21 U.S.C. §
841(b)(1)(D), (b)(4).
Moreover, Allen cannot demonstrate that he suffered any prejudice as a
result of his transfer to detention in Texas. See Bolvito v. Mukasey, 527 F.3d
428, 438 (5th Cir. 2008). The Second and Eleventh Circuits both recognize the
validity of the modified categorical approach that we employ. See Accardo v.
U.S. Att’y Gen., 634 F.3d 1333, 1335-36 (11th Cir. 2011); Oouch v. DHS, 633 F.3d
119, 122 (2d Cir. 2011).
PETITION DENIED.
2