Espinal v. Holder
2011 U.S. App. LEXIS 5992
5th Cir.2011Background
- Espinal, a Dominican Republic native and former LPR, seeks review of a BIA dismissal of his removal appeal.
- He was convicted in 2007 of simple possession of crack cocaine under New York law, with prior NY drug convictions in 2003 and 2005.
- The IJ found removability and ineligibility for cancellation due to aggravated felony grounds.
- The BIA dismissed the February 2008 order and Espinal petitioned for review; the BIA later sua sponte reconsidered.
- In March 2008, the BIA issued a March Order affirming the February Order but relying on different prior convictions; Espinal did not file a new petition for review of the March Order.
- The central issue is appellate jurisdiction when the BIA revises its order after reconsideration but before a petition for review is renewed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court has jurisdiction where the BIA sua sponte revises its order after reconsideration. | Espinal argues jurisdiction exists despite revision. | Holder argues the March Order affects finality; review may be moot. | Jurisdiction exists; court retains review despite revision. |
| Merits: whether Espinal’s 2007 NY possession conviction qualifies as an aggravated felony under Carachuri-Rosendo. | Espinal contends no federal felony aggravate-removal bar since his 2007 conviction isn’t a CSA felony based on prior conviction. | BIA deemed it an aggravated felony under former interpretations. | Remanded to consider cancellation of removal in light of Carachuri-Rosendo; 2007 conviction not itself an aggravated felony. |
Key Cases Cited
- Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (Supreme Court 2010) (state conduct must be punishable as a felony and the defendant actually convicted of a felony punishable under federal law)
- Mu Ju Li v. Mukasey, 515 F.3d 575 (6th Cir. 2008) (reconsideration may replace but not vacate the original order; jurisdiction analysis depends on material change)
- Jaggernauth v. Attorney Gen., 432 F.3d 1346 (11th Cir. 2005) (jurisdiction maintained when reconsideration does not vacate the original order)
- Plasencia-Ayala v. Mukasey, 516 F.3d 738 (9th Cir. 2008) (filing reconsideration does not render the review from the original order moot)
- Stone v. I.N.S., 514 U.S. 386 (Supreme Court 1995) (reconsideration and finality principles in review)
- Thomas v. Attorney Gen., 625 F.3d 134 (3d Cir. 2010) (case-by-case approach to finality when BIA reconsideration occurs)
- Desta v. Ashcroft, 329 F.3d 1179 (10th Cir. 2003) (premise that reconsideration reasoning may be retained if not materially altered)
- Khouzam v. Ashcroft, 361 F.3d 161 (2d Cir. 2004) (jurisdiction considerations where BIA does not materially alter its reasoning)