Torres-Segoviano v. Gonzales , 235 F. App'x 65 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1580
MARIO TORRES-SEGOVIANO,
Petitioner,
versus
ALBERTO R. GONZALES, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals. (A92-889-484)
Submitted: August 6, 2007 Decided: August 21, 2007
Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.
Petition granted and remanded by unpublished per curiam opinion.
Robert P. Dwoskin, Charlottesville, Virginia, for Petitioner.
Peter D. Keisler, Assistant Attorney General, M. Jocelyn Lopez
Wright, Assistant Director, Eric W. Marsteller, Office of
Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mario Torres-Segoviano, a native and citizen of Mexico,
petitions for review of an order of the Board of Immigration
Appeals (“Board”) affirming, without opinion, the immigration
judge’s decision ordering him removed to Mexico.
In his petition for review, Torres-Segoviano challenges
the immigration judge’s finding that his state conviction for
possession of cocaine qualified as an aggravated felony.1 Although
the immigration judge concluded that Torres-Segoviano was an
aggravated felon in light of our decision in United States v.
Wilson, 316 F.3d 506 (4th Cir. 2003), that case was later abrogated
by the Supreme Court in Lopez v. Gonzales, 127 S. Ct. 625 (2006)
(holding that only a controlled substance violation that is
punishable as a felony under the federal Controlled Substances Act
can constitute an aggravated felony and finding that it is not
enough that the crime is punishable as a felony under state law).
Because it appears that Torres-Segoviano was improperly
classified as an aggravated felon,2 we grant the petition for
review and remand to the Board for further proceedings in light of
the Supreme Court’s holding in Lopez. We dispense with oral
1
We find that we have jurisdiction to consider this claim
pursuant to 8 U.S.C.A. § 1252(a)(2)(D) (West 2005). See Mbea v.
Gonzales, 482 F.3d 276, 278 n.1 (4th Cir. 2007).
2
We, of course, offer no criticism of the Board or immigration
judge, which did not have the benefit of Lopez during Torres-
Segoviano’s removal proceedings.
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argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
PETITION GRANTED AND REMANDED
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