Misir

MEMORANDUM **

Eshwar Ram Misir (“Misir”) petitions for review of the Board of Immigration Appeals’ (“BIA”) affirmance of the immigration judge’s (“U”) order denying his application for cancellation of removal. On appeal, Misir claims that, due to an intervening change in law, his conviction for simple possession of a controlled substance no longer constitutes an aggravated felony, and therefore he is no longer statutorily ineligible for cancellation of removal.

The Government contests Misir’s petition on two grounds. First, the Government argues that this court lacks jurisdiction to review Misir’s claims because Misir filed his second habeas petition, now a petition for review, more than thirty days after the BIA issued its decision. Second, the Government argues that res judicata bars Misir’s claims because this court has already, on direct appeal, addressed the issue of whether Misir’s conviction constitutes an aggravated felony.

We find no merit in the Government’s arguments and agree with Misir’s claim. Therefore, we grant the petition for review and remand Misir’s case to the BIA for further proceedings regarding Misir’s application for cancellation of removal.

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