In Carachuri-Rosendo v. Holder, No. 09-60, the Court reversed the Fifth Circuit's denial of petitioner's petition for review of the BIA's order, holding that second or subsequent simple possession offenses are not aggravated felonies under 8 U.S.C. section 1101(a)(43) when, as in this case, the state conviction was not based on the fact of a prior conviction.
As the Court wrote: "Petitioner Jose Angel Carachuri-Rosendo, a lawful permanent resident who has lived in the United States since he was five years old, faced deportation under federal law after he committed two misdemeanor drug possession offenses in Texas. For the first, possession of less than two ounces of marijuana, he received 20 days in jail. For the second, possession without a prescription of one tablet of a common antianxiety medication, he received 10 days in jail. After this second offense, the Federal Government initiated removal proceedings against him. He conceded that he was removable, but claimed he was eligible for discretionary relief from removal under 8 U. S. C. §1229b(a)."