Marxall Campos v. Eric Holder, Jr.

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Marxall Campos v. Eric Holder, Jr.

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Case: 09-60832

Document: 00511176652

Page: 1

Date Filed: 07/16/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-60832 S u m m a r y Calendar July 16, 2010 Lyle W. Cayce Clerk

M A R X A L L R. CAMPOS, P e titio n e r v. E R I C H. HOLDER, JR., U. S. ATTORNEY GENERAL, R espon dent

P e tit io n for Review of an Order of the B o a r d of Immigration Appeals B I A No. A041 743 290

B e fo r e KING, DEMOSS, and DENNIS, Circuit Judges P E R CURIAM:* M a r x a ll R. Campos, a citizen and native of the Dominican Republic, p e t it io n s this court for review of the order issued by the Board of Immigration A p p e a ls ' (BIA) affirming the Immigration Judge's (IJ's) determination that he w a s ineligible for cancellation of removal. Relying on Carachuri-Rosendo v. Holder, 570 F.3d 263 (5th Cir. 2009), r e v e r s e d , ___ S. Ct. ___, 2010 WL 2346552 (U.S. June 14, 2010); United States v . Cepeda-Rios, 530 F.3d 333 (5th Cir. 2008), and United States v. SanchezPursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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Case: 09-60832

Document: 00511176652 Page: 2 No. 09-60832

Date Filed: 07/16/2010

V illa lo b o s , 412 F.3d 572 (2005), abrogated in part by Lopez v. Gonzales, 549 U.S. 4 7 , 58-60 (2006), the BIA held that Campos's second misdemeanor criminal p o s s e s s io n of cocaine constituted an aggravated felony because it corresponded t o the recidivist provisions of 21 U.S.C. § 844(a). The Supreme Court has since r e v e r s e d Carachuri-Rosendo, rejecting this court's "hypothetical approach" and h o ld in g that "the defendant must . . . have been actually convicted of a crime t h a t is itself punishable as a felony under federal law." Carachuri-Rosendo, 2 0 1 0 WL 2346552, *11. As in Carachuri-Rosendo, Campos was not actually c o n v ic t e d under the state recidivist statute. In accordance with the Supreme C o u r t 's ruling, Campos's petition for review is GRANTED and the order of the B I A is VACATED and REMANDED.

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