Case: 09-60832 Document: 00511176652 Page: 1 Date Filed: 07/16/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 16, 2010
No. 09-60832
Summary Calendar Lyle W. Cayce
Clerk
MARXALL R. CAMPOS,
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A041 743 290
Before KING, D EMOSS, and DENNIS, Circuit Judges
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, ___ 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. Sanchez-
*
Pursuant 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 09-60832 Document: 00511176652 Page: 2 Date Filed: 07/16/2010
No. 09-60832
Villalobos, 412 F.3d 572 (2005), abrogated in part by Lopez v. Gonzales, 549 U.S.
47, 58-60 (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,
2010 WL 2346552, *11. 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.
2