     Case: 08-60278     Document: 00511194017          Page: 1    Date Filed: 08/04/2010




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

                                                  FILED
                                                                           August 4, 2010

                                     No. 08-60278                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



LYNDON CHRISTOPHER YOUNG, also known as Lyndon Young,
also known as Lyndon Griffith

                                                   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. A35 750 048


 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Lyndon Christopher Young petitioned for review of an order of the Board
of Immigration Appeals (BIA) finding him ineligible for cancellation of removal.
We denied the petition. The Supreme Court vacated our decision and remanded




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-60278    Document: 00511194017      Page: 2   Date Filed: 08/04/2010

                                  No. 08-60278

to this court for further consideration in light of its ruling in Carachuri-Rosendo
v. Holder, 130 S. Ct. 2577 (2010).
      Young, a citizen of Trinidad and Tobago, was admitted as a lawful
permanent resident of the United States in March 1976. Removal proceedings
were instituted. Young conceded removability based on his guilty plea in 1996
for unlawful possession of marijuana and third degree criminal possession of a
firearm, and also on his guilty plea in 2006 for criminal possession of marijuana
in the fifth degree. He applied for asylum, for withholding of removal and for
relief under the Convention Against Torture. The Immigration Judge found
Young ineligible for cancellation of removal because his second marijuana
conviction qualified as an aggravated felony under the Immigration and
Nationality Act. The BIA affirmed the order of removal.
      We denied Young’s petition for review because his 2006 conviction
qualified as an aggravated felony despite that he had not been prosecuted as a
recidivist under New York law. Young v. Holder, 344 F. App’x 944 (5th Cir.
2009). We relied on our holding in Carachuri-Rosendo, 570 F.3d 263 (5th Cir.
2009). The Supreme Court has now 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 ‘under the
Controlled Substances Act,’ 18 U.S.C. § 924 (c)(2).” Carachuri-Rosendo, 130 S.
Ct. at 2589. The defendant must have been “actually convicted of a crime that
is itself punishable as a felony under federal law.” Id. (emphasis in original).
      Using this definition, Young was not “actually convicted” under the New
York state recidivist statute. Consequently, the BIA’s holding that he was, in
reliance on our now reversed caselaw, was in error.
       We VACATE and REMAND to allow Young to pursue cancellation of
removal in light of the Supreme Court’s ruling in Carachuri-Rosendo.

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