     Case: 09-60344 Document: 00511322595 Page: 1 Date Filed: 12/15/2010




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

                                                 FILED
                                                                         December 15, 2010
                                     No. 09-60344
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

ANDREW WAYNE MCKENZIE, also known as Andrew W. McKenzie, also
known as Andy McKenzie,

                                                   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. A037 773 092


Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Andrew Wayne McKenzie, a native and citizen of Jamaica, petitions for
review of the Board of Immigration Appeals’ (BIA) decision, affirming the
Immigration Judge’s (IJ) order finding him removable, and ineligible for
cancellation of removal, as an alien convicted of an aggravated felony. 8 U.S.C.
§§ 1227(a)(2)(B)(i), (a)(2)(A)(iii), 1229b(a). McKenzie contends the BIA erred in
determining: he had been convicted of an aggravated felony, rendering him


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-60344 Document: 00511322595 Page: 2 Date Filed: 12/15/2010

                                  No. 09-60344

ineligible for cancellation of removal; and the Department of Homeland Security
was not barred by res judicata from alleging McKenzie had additional prior drug
convictions.
      Although our court is generally precluded from reviewing a final order of
removal for commission of a criminal offense under 8 U.S.C. § 1227(a)(2)(B), we
retain jurisdiction to review questions of law. See 8 U.S.C. § 1252(a)(2)(D); Patel
v. Mukasey, 526 F.3d 800, 802 (5th Cir. 2008). Because McKenzie raises purely
legal questions, our review for both issues is de novo. Martinez v. Mukasey, 508
F.3d 255, 257-58 (5th Cir. 2007); Andrade v. Gonzales, 459 F.3d 538, 542 (5th
Cir. 2006).
      McKenzie, who was convicted in November 2005 of crack-cocaine
possession under New York law, and who had prior final state drug convictions,
contends the BIA erred by treating his November 2005 conviction as an
aggravated felony under the recidivist provision of the Controlled Substances
Act. See 21 U.S.C. § 844(a). For an aggravated-felony offense to disqualify an
alien from receiving cancellation of removal, however, he must have been
“actually convicted” of the felony. Carachuri-Rosendo v. Holder, 130 S. Ct. 2577,
2589 (2010) (emphasis in original). Because none of McKenzie’s New York drug
convictions were based upon the fact of a prior conviction, the BIA erred in
determining he had committed an aggravated felony and, therefore, was
ineligible for cancellation of removal. See id. at 2580.
      McKenzie is incorrect in his assertion that res judicata barred the
addition, on remand, of allegations regarding his prior convictions. McKenzie
cites no case law concerning res judicata when the BIA has merely remanded a
case to the IJ. See Medina v. INS, 993 F.2d 499, 503 (5th Cir. 1993) (noting res
judicata precludes subsequent litigation between same parties on same issues
only where there has been valid final judgment on the merits).
      PETITION GRANTED; VACATED AND REMANDED.



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