     Case: 08-60818     Document: 00511158939          Page: 1    Date Filed: 06/29/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            June 29, 2010

                                       No. 08-60818                         Lyle W. Cayce
                                                                                 Clerk

YELSON ERNESTO BASTARDO

                                                   Petitioner
v.

ERIC H HOLDER, JR, U S ATTORNEY GENERAL

                                                   Respondent




                      On Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A42 889 306


Before KING, JOLLY, and STEWART, Circuit Judges.
PER CURIAM:*
        Yelson Ernesto Bastardo petitions for review of a decision ordering him
deported after finding he was ineligible for cancellation. We vacate and remand.
        Bastardo, a citizen of the Dominican Republic, was admitted to the United
States as a permanent legal resident on July 20, 1990, when he was nine.
Bastardo has three New York drug convictions, two for sale of marijuana in 2001
and 2006 and one for possession in 2007. On January 17, 2008, the Department
of Homeland Security instituted deportation proceedings. The immigration

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                    No. 08-60818

judge ordered deportation, and the Board of Immigration Appeals affirmed.
Bastardo timely petitioned our court.
      Under the Immigration and Nationality Act (“INA”), an alien may be
deported after a conviction for violating “any law . . . of any State . . . relating to
a controlled substance.” 8 U.S.C. § 1227(a). Any of his three convictions qualify
him for deportation under § 1227(a), but Bastardo also argues that he is entitled
to argue for cancellation of removal under § 1229b(a), which allows the Attorney
General to cancel the removal of aliens, such as Bastardo, who have been lawful
permanent residents for five years and resided in the United States for seven or
more years continuously, unless they have an “aggravated felony” conviction.
Relying on its previous decisions, the Board of Immigration Appeals held that
Bastardo was not eligible for discretionary cancellation, because his possession
conviction could have been charged as a felony under the Controlled Substances
Act, which makes it a felony to possess any controlled substance after being
convicted of a state-law drug offense. See 21 U.S.C. § 844(a) (allowing a sentence
of as much as two years); 18 U.S.C. § 3559(a) (defining a felony as any crime
punishable by more than a year in prison). That ruling was consistent with our
court’s approach, which relies on the INA’s definition of a “drug trafficking
crime,” an aggravated felony under the INA, as “any felony punishable under the
Controlled Substances Act.” See, e.g., Carachuri-Rosendo v. Holder, 570 F.3d
263, 265-67 (5th Cir. 2009) (quoting 18 U.S.C. § 924(c)(2)). Because the conduct,
a possession offense committed after a previous state drug conviction, could have
been charged as a recidivist drug offense under the Controlled Substances Act
it qualified as an aggravated felony. Id.
      On June 14, however, the Supreme Court reversed Carachuri-Rosendo,
holding that “when a defendant has been convicted of a simple possession offense
that has not been enhanced based on the fact of a prior conviction, he has not
been ‘convicted’ under [21 U.S.C.] § 1229b(a)(3) of a ‘felony punishable’ as such

                                          2
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                                    No. 08-60818

‘under the Controlled Substances Act, 18 U.S.C. § 924(c)(2).” Carachuri-Rosendo
v. Holder, No. 09-60, slip op. at 18. “The mere possibility that the defendant’s
conduct, coupled with facts outside the record of conviction, could have
authorized a felony conviction under federal law is insufficient . . . .” Id. at 17-18.
Bastardo’s argument is exactly that adopted by the Supreme Court in
Carachuri-Rosendo. We vacate and remand to allow Bastardo to argue for
cancellation of removal.
      The decision of the Board of Immigration Appeals is
                                                     VACATED and REMANDED.




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