     Case: 08-60505 Document: 00511332841 Page: 1 Date Filed: 12/27/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         December 27, 2010
                                     No. 08-60505
                                   Summary Calendar                         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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



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    Case: 08-60505 Document: 00511332841 Page: 3 Date Filed: 12/27/2010

                                 No. 08-60505

DISMISSED for lack of jurisdiction as untimely.    See Navarro-Miranda v.
Ashcroft, 330 F.3d 672, 676 (5th Cir. 2003).




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