Case: 08-60199     Document: 00511224641          Page: 1    Date Filed: 09/03/2010




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

                                                  FILED
                                                                         September 3, 2010

                                     No. 08-60199                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



GEORGE ERNEST ABAIDOO THOMPSON, also known as George
Thompson,


                                                   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. A42-954-981


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        George Ernest Abaidoo Thompson, a citizen and native of Ghana, petitions
this court for review of a February 8, 2008, decision by the Board of Immigration
Appeals (Board) affirming the Immigration Judge’s (IJ’s) determination that he

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-60199   Document: 00511224641      Page: 2   Date Filed: 09/03/2010

                                  No. 08-60199

is ineligible for cancellation of removal. Thompson also seeks review of an April
8, 2009, Board decision denying his motion to reopen.
      In the February 8 order, the Board agreed with the IJ’s determination that
Thompson’s 2006 New York conviction for seventh-degree criminal possession
of a controlled substance qualifies as an “aggravated felony” under 8 U.S.C. §
1101(a)(43)(B) because it corresponds to the recidivist provisions of 21 U.S.C. §
844(a) when considered with his May 2004 conviction for the same offense. The
Board relied on its precedent in Matter of Carachuri-Rosendo, 24 I & N Dec. 382
(BIA 2007), aff’d, Carachuri-Rosendo v. Holder, 

(5th Cir. 2009),
rev’d, 

(2010) to reject the argument that Thompson’s 2006
conviction should not qualify as an aggravated felony because it was not
prosecuted as a recidivist offense under New York law, stating that “Fifth
Circuit precedent does not presently impose any such requirement.”
      Since the Board’s decision, the Supreme Court has held that to qualify as
an aggravated felony, “the conduct prohibited by state law must be punishable
as a felony under federal law” and “the defendant must also have been actually
convicted of a crime that is itself punishable as a felony under federal law.”

. Accordingly, “second or subsequent
simple possession offenses are not aggravated felonies under § 1101(a)(43) when
. . . the state conviction is not based on the fact of a prior conviction.” 

In this case, though Thompson’s 2006 conviction is a subsequent simple
possession offense, the conviction is not a crime punishable as a felony under
federal law, nor was the conviction pursuant to the state recidivist statute.
      In accordance with the Supreme Court’s ruling, Thompson’s petition for
review of the Board’s February 8 order is GRANTED and the order of the BIA




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                                     No. 08-60199

is VACATED and REMANDED. Thompson’s petition for review of the Board’s
April 8 order is DISMISSED AS MOOT.1




      1
        We do not address the portion of the Board’s February 8 order rejecting Thompson’s
claims of ineffective assistance of counsel.

                                            3