Not all cocaine base convictions are aggravated felonies

Matter of Aguirre, 2010 WL 4509738, A073-808-366 (BIA Oct. 29, 2010) (Memphis).

The LPR was convicted of possessing cocaine base.  The IJ found that it was an aggravated felony barring him from cancellation of removal.

Sidestepping the LPR's Federal First Offender Act argument, the BIA remanded because not all convictions for possessing cocaine base are federal felonies.  21 USC s 844(a); Lopez v. Gonzales, 549 US 47 (2006).  Because the record does not show that he possessed more than five grams of cocaine base, the BIA held that the state conviction was analogous to a federal misdemeanor.  The BIA remanded for consideration of his application for cancellation of removal.