Marxall Campos v. Eric Holder, Jr.

387 F. App'x 464

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 16, 2010
• Docket: 09-60832
• Status: Unpublished

Opinion

PER CURIAM: *

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.

* Pursuant to 5th Cm. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.