Phillip v. Holder , 354 F. App'x 928 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 8, 2009
No. 08-60063
Summary Calendar Charles R. Fulbruge III
Clerk
RAY ANTHONY PHILLIP, also known as Ray A Phillip, also known as Ray
Phillips, also known as Tony Phillip, also known as Ray A Philip,
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. A034 340 336
Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Ray Anthony Phillip, a native and citizen of Trinidad and Togabo petitions
this court for review of the Board of Immigration Appeals’ (BIA) decision
dismissing his appeal of the Immigration Judge’s (IJ) order that he was
removable pursuant to 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 has also filed a motion to supplement the record.
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-60063
The court need not address Phillip’s argument concerning his 1983
firearms conviction because the IJ and BIA did not rely upon that conviction to
determine ineligibility for cancellation of removal, but only for the initial
decision that Phillip was removable as charged in the notice to appeal. The BIA
correctly determined that Phillip’s second controlled substance offense
constituted an aggravated felony for immigration law purposes. See
Carachuri-Rosendo v. Holder, 570 F.3d at 266-68 (5th Cir. 2009), petition for
cert. filed (July 15, 2009) (No. 09-60). Phillip is, therefore, ineligible for
cancellation of removal. See id.; § 1229b(a). Phillip’s argument that his second
possession offense is not an aggravated felony under 21 U.S.C. § 844(a) because
21 U.S.C. § 851’s notice requirements were not satisfied is unavailing. See
Carachuri-Rosendo, 570 F.3d at 266; United States v. Cepeda-Rios, 530 F.3d 333,
336 n.11 (5th Cir. 2008). Given that his petition for review lacks merit, his
motion to supplement the record is denied.
PETITION DENIED; MOTION DENIED.
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