     Case: 08-60112 Document: 00511309648 Page: 1 Date Filed: 12/02/2010




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

                                                 FILED
                                                                          December 2, 2010
                                     No. 08-60112
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

ADOLFO HEREDIA-ARROYO,

                                                   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. A19 022 460


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
       Adolfo Heredia-Arroyo (Heredia), a native and citizen of Mexico, petitions
for review of an order of the Board of Immigration Appeals (BIA). The BIA
found Heredia ineligible for cancellation of removal because his 1997 Texas
conviction of possession of marijuana constituted an aggravated felony for
purposes of immigration law.
       Because none of Heredia’s Texas drug convictions were based upon the fact
of a prior conviction, the BIA erred by determining that he had committed an

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-60112 Document: 00511309648 Page: 2 Date Filed: 12/02/2010

                                No. 08-60112

aggravated felony and that, as a result, he was ineligible for cancellation of
removal.   See Carachuri-Rosendo v. Holder, 130 S. Ct. 2577, 2580 (2010).
Heredia’s petition for review is GRANTED. The order of the BIA is VACATED,
and the case is REMANDED to allow him to pursue cancellation of removal in
light of the Supreme Court’s ruling in Carachuri-Rosendo.




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