ALEGRAND v. MUKASEY (2008)

SUMMARY ORDER

Petitioner Claude Alegrand, a native and citizen of Haiti, seeks review of the January 4, 2008 decision of the BIA dismissing his appeal from the June 7, 2007 decision of the Immigration Judge (“IJ”) finding Alegrand removable under 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien who had been convicted of aggravated felonies, as that term is defined at 8 U.S.C. § 1101(a)(43)(B).  IN RE CLAUDE ALEGRAND, No. AXX XX3 414, 2008 WL 339667 (B.I.A. Jan. 4, 2008), aff'g AXX XX3 414 (Immig. Ct. Hartford, CT June 7, 2007).  We assume the parties' familiarity with the underlying facts and procedural history of the case.

The parties concede that the outcome of this case turns on this Court's decision in Alsol v. Mukasey, 548 F.3d 207 (2d Cir.2008), as to whether second simple drug possession convictions under state law constitute felonies under the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii).  Alsol holds that a second conviction for simple drug possession under state law is not a felony under the Controlled Substances Act simply because it could have been prosecuted as a recidivist offense pursuant to 21 U.S.C. § 844(a).  Alsol, 548 F.3d 207, 210. Thus, such simple possession may not be considered an aggravated felony for purposes of removal pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), and, moreover, this Court's prior decision in United States v. Simpson, 319 F.3d 81 (2d Cir.2002) does not foreclose such a holding.

Accordingly, we VACATE the decision of the BIA and REMAND for proceedings consistent with the Alsol opinion.