Idowu v. Holder, No. 08-60505 (5th Cir. 2010)
Annotate this Case
Download PDF
Case: 08-60505 Document: 00511332841 Page: 1 Date Filed: 12/27/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 08-60505 Summary Calendar December 27, 2010 Lyle W. Cayce Clerk GBOLAHAN OWOLABI IDOWU, also known as Gdolahan Idowu, also known as Bola Idowu, also known as Zaheed G Bola, also known as Owolabi Alabi, also known as Owolabi Bola, also known as Bola B Aladi, also known as Zaheed Alamu, also known as Idowa Bola, also known as Gbola Idowu, also known as Gbolahan Idown, also known as Idowu, also known as Idowu Gbolahan, also known as Gblahan Idown, 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 574 713 Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges. PER CURIAM:* Gbolahan Owolabi Idowu, a native and citizen of Nigeria, petitions this court for review of the Board of Immigration Appeals (BIA) decision dismissing his appeal of the Immigration Judge s order that he was removable pursuant to * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-60505 Document: 00511332841 Page: 2 Date Filed: 12/27/2010 No. 08-60505 8 U.S.C. § 1227(a)(2)(A)(iii) and ineligible for cancellation of removal pursuant to 8 U.S.C. § 1229b(a)(3) because he committed an aggravated felony. He also petitions this court for review of the BIA s denial of his motion for reconsideration. Idowu contends that the BIA erred when it determined that he was subject to removal and statutorily ineligible for cancellation of removal because his second New York conviction for criminal possession of a controlled substance in the seventh degree was punishable as an aggravated felony under the recidivist provisions of the Controlled Substances Act. This court reviews the BIA s legal conclusions, including whether a past conviction constitutes an aggravated felony, de novo. Patel v. Mukasey, 526 F.3d 800, 802 (5th Cir. 2008). The BIA relied on its decision in In re Carachuri-Rosendo, 24 I&N Dec. 382 (BIA 2007), to reject Idowu s argument that his second state possession conviction did not constitute an aggravated felony because it was not prosecuted in state court as a recidivist offense. However, the Supreme Court has rejected the BIA s reasoning in that decision, holding that a second or subsequent simple possession conviction is not an aggravated felony under the Immigration and Nationality Act when . . . the state conviction is not based on the fact of a prior conviction. Carachuri-Rosendo v. Holder, 130 S. Ct. 2577, 2580 (2010). As in Carachuri-Rosendo, the record does not reflect that Idowu was actually convicted under New York s recidivist statute. See id. at 2586. Because the legal basis for the BIA s decision is no longer valid, Idowu s petition for review, which was transferred to this court on June 6, 2008, is GRANTED, and the case is REMANDED to the BIA for further proceedings. Idowu s petition for review of the BIA s denial of his motion for reconsideration, which was transferred to this court on July 16, 2008, is DENIED as moot. Idowu s petitions for review of the BIA s denial of his motion for reconsideration, which were transferred to this court on September 12, and September 30, 2008, are 2 Case: 08-60505 Document: 00511332841 Page: 3 Date Filed: 12/27/2010 No. 08-60505 DISMISSED for lack of jurisdiction as untimely. Ashcroft, 330 F.3d 672, 676 (5th Cir. 2003). 3 See Navarro-Miranda v.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
