Morgan-White v. Holder

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 No. 08-60586 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.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.