NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
On Remand from the Supreme Court*
Decided September 22, 2010
Before
JOHN L. COFFEY, Circuit Judge
TERENCE T. EVANS, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 08‐4188
KURT GARBUTT, Petition for Review of
Petitioner, an Order of the Board of
Immigration Appeals.
v.
No. A036‐991‐429
ERIC H. HOLDER, JR., Attorney
General of the United States,
Respondent.
O R D E R
Kurt Garbutt, a citizen of Belize, was found to be ineligible for cancellation of removal
under 8 U.S.C. § 1229b(a)(3) after an immigration judge determined, applying this courtʹs
precedent in Fernandez v. Mukasey,
544 F.3d 862 (7th Cir. 2008), that his second state conviction
for cocaine possession constituted an aggravated felony, as defined in
8 U.S.C. § 1101(a)(43)(B).
After the Board of Immigration Appeals (BIA) affirmed the order of the judge, Garbutt
*
After examining the briefs and record, we have concluded that oral argument is unnecessary.
See F. R. App. P. 34(a)(2)(C).
No. 08‐4188 Page 2
petitioned for review arguing that we should overrule Fernandez. We declined to do so and
denied his petition. See Garbutt v. Holder, 351 F. App’x. 106, 110‐11 (7th Cir. 2009) (citing
Fernandez and United States v. Pacheco‐Diaz,
506 F.3d 545 (7th Cir. 2007)). Garbutt subsequently
filed a petition for writ of certiorari with the Supreme Court. The writ was granted.
The Supreme Court vacated our judgment and remanded Garbutt’s petition for further
consideration in light of its recent decision in Carachuri‐Rosendo v. Holder, 560 U.S. – ,
130 S. Ct.
2577 (2010). See Garbutt v. Holder,
130 S. Ct. 3460, 3461 (2010). Pursuant to Circuit Rule 54, we
invited the parties to present their positions as to the action we should take. Both parties agree
that we should remand the case to the BIA to revisit its denial of cancellation of removal
because Carachuri‐Rosendo effectively overturned our relevant holdings in Fernandez and
Pacheco‐Diaz.
We also agree. Under Carachuri‐Rosendo, Garbutt’s second state possession conviction
may no longer be considered an aggravated felony under
8 U.S.C. § 1101(a)(43)(B) because it
was not based on the fact of a prior conviction. Thus, he is not ineligible for cancellation of
removal under 8 U.S.C. § 1229b(a)(3).
Accordingly, the petition for review is GRANTED, and the case is REMANDED to the
BIA for further proceedings consistent with this opinion.
