Carachuri-Rosendo v. Holder

570 F.3d 263

5th Cir.

2010

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JOSE ANGEL CARACHURI-ROSENDO v. ERIC H. HOLDER, JR., U S ATTORNEY GENERAL

No. 07-61006

United States Court of Appeals for the Fifth Circuit

August 6, 2010

Petition For Review of an Order of the United States Board of Immigration Appeals ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before JONES, Chief Judge, and KING and ELROD, Circuit Judges.

PER CURIAM:

The Supreme Court reversed the decision of this court in Carachuri-Rosendo v. Holder, No. 09-60, _____ U.S. _____, 130 S. Ct. 2577. The consequence of the Court‘s action is that this petitioner was not ineligible for cancellation of removal based on his recidivist state misdemeanor conviction for drug possession. Because the state did not enhance his conviction based on the fact of a prior conviction, “he has not been ‘convicted’ under § 1229b(a)(3) of a ‘felony punishable’ as such ‘under the Controlled Substances Act,’ 18 USC § 924(c)(2).” Id. at _____ U.S. _____, 130 S. Ct. at 2589. Accordingly, this court must GRANT the petition for review and REMAND to the BIA for further proceedings to adjudicate the petition for cancellation of removal.

Petition Granted; Case Remanded.