James v. Mukasey, 2d Cir. Mar. 25, 2008
06-5163-ag James v. Mukasey
Before: CALABRESI, CABRANES, and SOTOMAYOR, Circuit Judges.
The petitioner seeks review of a decision of the Board of Immigration Appeals (“BIA”) finding him removable for having committed an aggravated felony. While we lack jurisdiction to consider the petitioner’s unexhausted adjustment of status claim, we have jurisdiction to review whether the BIA properly deemed the petitioner’s conviction an aggravated felony. We conclude that the agency’s decision on this issue was based on an incorrect premise in that it assumed we treat the petitioner’s statute of conviction, New York Penal Law section 260.10, as divisible when in fact that is an open question. Accordingly, the petition for review is GRANTED in part and DISMISSED in part, the order of removal is VACATED, and the case is REMANDED to the BIA for further proceedings consistent with this opinion. … James v. Mukasey.
