Opinion
No. 09-60832 Summary Calendar.
July 16, 2010.
Stephen W. Spurgin, Esq., Spurgin Law Office, Marfa, TX, for Petitioner.
Jesse Matthew Bless, U.S. Department of Justice Office of Immigration Litigation, Washington, DC, for Respondent.
Petition for Review of an Order of the Board of Immigration Appeals, BIA No. A041 743 290.x
Before KING, DeMOSS, and DENNIS, Circuit Judges.
Marxall R. Campos, a citizen and native of the Dominican Republic, petitions this court for review of the order issued by the Board of Immigration Appeals' (BIA) affirming the Immigration Judge's (IJ's) determination that he was ineligible for cancellation of removal.
Relying on Carachuri-Rosendo v. Holder, 570 F.3d 263 (5th Cir. 2009), reversed, ___ U.S. ___, 130 S.Ct. 2577, 177 L.Ed.2d 68 (2010); United States v. Cepeda-Rios, 530 F.3d 333 (5th Cir. 2008), and United States v. Sanchez-Villalobos, 412 F.3d 572 (2005), abrogated in part by Lopez v. Gonzales, 549 U.S. 47, 58-60, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006), the BIA held that Campos's second misdemeanor criminal possession of cocaine constituted an aggravated felony because it corresponded to the recidivist provisions of 21 U.S.C. § 844(a). The Supreme Court has since reversed Carachuri-Rosendo, rejecting this court's "hypothetical approach" and holding that "the defendant must . . . have been actually convicted of a crime that is itself punishable as a felony under federal law." Carachuri-Rosendo, 130 S.Ct. at 2589. As in Carachuri-Rosendo, Campos was not actually convicted under the state recidivist statute. In accordance with the Supreme Court's ruling, Campos's petition for review is GRANTED and the order of the BIA is VACATED and REMANDED.