IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-60261

Summary Calendar

JULIAN NIETO HERNANDEZ,

Petitioner

v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the 

Board of Immigration Appeals

Before KING, DAVIS, and HAYNES, Circuit Judges.

HAYNES, Circuit Judge:

Petitioner Julian Nieto Hernandez (“Nieto”) petitions this court for review

of the Board of Immigration Appeals’s (“BIA”) decision affirming the

Immigration Judge’s (“IJ”) denial of his petition for cancellation of removal. We

find no error in the BIA’s decision. Accordingly, we DENY Nieto’s petition. 

I. FACTUAL AND PROCEDURAL BACKGROUND

Nieto is a native and citizen of Mexico. He was admitted into the United

States in 1981. In 1997, Nieto was convicted of second degree felony possession

of marijuana under Texas Health & Safety Code (“THSC”) § 481.121. One year

United States Court of Appeals

Fifth Circuit

F I L E D

December 30, 2009

Charles R. Fulbruge III

Clerk
No. 09-60261

2

later, Nieto was convicted of unlawful possession of a firearm under Texas Penal

Code (“TPC”) § 46.04(a). 

Because of his convictions, the Department of Homeland Security (“DHS”)

charged Nieto with removal under the Immigration and Nationality Act (“INA”).

At his removal hearing, Nieto conceded that his conviction under THSC §

481.121 made him subject to removal under the INA. To avoid being removed

to Mexico, Nieto petitioned the IJ to cancel his removal under 8 U.S.C. §

1229b(a), which grants the Attorney General discretionary authority to cancel

the removal of an otherwise removable alien. To be entitled to cancellation, an

alien must show that he “has not been convicted of any aggravated felony.” 8

U.S.C. § 1229b(a)(3). The IJ found that Nieto’s conviction under TPC § 46.04

was for an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(E)(ii). Section

1101(a)(43)(E)(ii) defines “aggravated felony” as including “an offense described

in section 922(g)(1) . . . of title 18, United States Code.” Under 18 U.S.C. §

922(g)(1), it is unlawful for any person who has been convicted of a felony to

possess, in or affecting interstate commerce, any firearm. The IJ found that

Nieto’s conviction under TPC § 46.04 fell under 8 U.S.C. § 1101(a)(43)(E)(ii)’s

definition of aggravated felony, and, based on that finding, the IJ concluded that

Nieto was ineligible for cancellation of removal. 

Nieto appealed the IJ’s cancellation decision to the BIA. In his brief to the

BIA, Nieto argued that the IJ erred in finding that his firearms conviction under

TPC § 46.04(a) constituted an aggravated felony. Specifically, he argued that his

conviction under TPC § 46.04(a) was not an aggravated felony as “described in”

18 U.S.C. § 922(g)(1) because TPC § 46.04(a) did not contain an interstate

commerce element, whereas § 922(g)(1) did. The BIA rejected Nieto’s argument,
No. 09-60261

 Nieto only appeals the IJ and the BIA’s cancellation decision. Thus, the only issue 1

before us is whether the BIA erred in affirming the IJ’s conclusion that Nieto was ineligible

for cancellation of removal.

3

finding that it was foreclosed by its decision in Vasquez-Muniz, 23 I. & N. Dec.

207 (B.I.A. 2002), which held that state felon-in-possession offenses need not

have an interstate commerce element in order for the offense to be an offense

“described in” 18 U.S.C. § 922(g)(1). 

Nieto then appealed the BIA’s decision to this court, pressing the same

argument that he made before the BIA.1

II. DISCUSSION

Nieto argues that the BIA erred in finding that his firearms conviction

under TPC § 46.04(a) was an “aggravated felony” under 8 U.S.C. §

1101(a)(43)(E)(ii), which defines “aggravated felony” as including an offense

“described in” 18 U.S.C. § 922(g)(1). Nieto argues that his firearms conviction

was not an offense described in 18 U.S.C. § 922(g)(1) because TPC § 46.04(a)

does not contain an interstate commerce element. We hold that state felon-inpossession offenses, such as TPC § 46.04(a), need not have an interstate

commerce element in order for the offense to be an offense “described in” 18

U.S.C. § 922(g)(1). Accordingly, we deny Nieto’s petition for review. 

A. Jurisdiction and Standard of Review 

This Court has jurisdiction to review “legal and constitutional issues

raised pertaining to removal orders.” Vasquez-Martinez v. Holder, 564 F.3d 712,

715 (5th Cir. 2009). “The BIA’s determination that an alien is ineligible for

discretionary relief in the form of cancellation of removal is a question of law

that we review de novo.” Id. In conducting our analysis, we first review the

BIA’s interpretation of the INA itself, including its definition of the INA’s words
No. 09-60261

 Although unpublished opinions are not precedent, this case addressed the exact 2

question presented here, interpreting the same statutes in the context of a sentencing

calculation. We find the reasoning of that opinion persuasive and adopt it here.

 The BIA’s interpretation is based on a Ninth Circuit decision, United States v.

3

Castillo-Rivera, 244 F.3d 1020, 1024 (9th Cir. 2001) (“We thus hold that a state felon in

possession offense is not required to include a commerce nexus as one of its elements in order

to qualify as an aggravated felony for sentencing purposes.”). Nieto asserts in his brief that

the Ninth Circuit’s decision in Castillo-Rivera was overruled. Nieto’s assertion is incorrect.

The Ninth Circuit recently affirmed and applied the holding in Castillo-Rivera in Anaya-Ortiz

v. Mukasey, 553 F.3d 1266, 1272 (9th Cir. 2009) (stating that a petitioner’s contention that his

conviction was not an aggravated felony as described in § 922(g)(1) because “an interstatecommerce element [was] not present” was “foreclosed by United States v. Castillo-Rivera,

which held that a state crime of conviction need not have the interstate-commerce element

contained in 18 U.S.C. § 922(g)(1) to qualify as an aggravated felony under §

1101(a)(43)(E)(ii)”).

4

and phrases. Omari v. Gonzales, 419 F.3d 303, 306 (5th Cir. 2005). We then

review de novo whether a petitioner’s conviction under a state statute

constitutes an “aggravated felony” and renders him ineligible for cancellation

of removal. See id. at 306; United States v. Garza, 250 F. App’x 67 (5th Cir.

2007) (unpublished).2

B. Meaning of 8 U.S.C. § 1101(a)(43)(E)

8 U.S.C. § 1101(a)(43)(E)(ii) defines “aggravated felony” as an offense

“described in” 18 U.S.C. § 922(g)(1). According to the BIA, for an offense to be

“described in” 18 U.S.C. § 922(g)(1), it only has to have the same substantive

elements as § 922(g)(1); jurisdictional elements, such as § 922(g)(1)’s interstate

commerce element, are irrelevant. See Vasquez-Muniz, 23 I. & N. Dec. at 210-

11, 213. The BIA applied this interpretation of the INA in affirming the IJ’s

finding that Nieto’s conviction under TPC § 46.04(a) constituted an aggravated

felony as described in § 922(g)(1). Nieto argues that the BIA’s interpretation is 3
No. 09-60261

Nieto also argues that the BIA’s interpretation is contrary to the Supreme Court’s 4

decision in Lopez v. Gonzales, 549 U.S. 47 (2006). Nieto’s reliance on Lopez is misplaced. The

Court’s decision in Lopez only considered whether “conduct treated as a felony by the State”

but only punishable as a misdemeanor under the federal Controlled Substances Act could

constitute an “aggravated felony” as defined by 8 U.S.C. § 1227(a)(2)(A)(iii). Id. at 50, 60. The

Court did not consider whether state firearm offenses need to have the same jurisdictional

elements as 18 U.S.C. § 922(g)(1) in order to fall under 8 U.S.C. § 1101(a)(43)(E)(ii)’s definition

of aggravated felony. See also Carachuri-Rosendo v. Holder, 570 F.3d 263, 266 (5th Cir. 2009)

(explaining that Lopez provides a “hypothetical approach” where a court “looks to conduct

proscribed by state law, not just the elements of the state law offense and compares that

conduct to federal law”), cert. granted, 78 U.S.L.W. 3359 (U.S. Dec. 14, 2009) (No. 09-60).

 We have previously stated that we “afford considerable ‘deference to the BIA’s 5

interpretation’” of the INA. Fonseca-Leite v. INS, 961 F.2d 60, 62 (5th Cir. 1992) (“In

conducting our reviews we are constrained to give considerable deference to the BIA’s

interpretation of the legislative scheme it is entrusted to administer.” (citing Chevron U.S.A.,

Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984))). 

5

incorrect. We need not determine the precise degree of deference to be afforded 4

the BIA’s interpretation because we conclude that it is correct as a matter of 5

statutory interpretation. See Chevron U.S.A., Inc. v. Natural Res. Def. Council,

Inc., 467 U.S. 837, 843 n.9 (1984) (“If a court, employing traditional tools of

statutory construction, ascertains that Congress had an intention on the precise

question at issue, that intention is the law and must be given effect.”); see also

Negrete-Rodriguez v. Mukasey, 518 F.3d 497, 503 (7th Cir. 2008) (adopting the

BIA interpretation at issue); Garza, 250 F. App’x at 71 (“Looking at § 922(g)(1),

the core of the offense proscribed is conviction of a felony and ownership and

possession of a handgun.”). 

Section 1101(a)(43)’s “penultimate sentence” supports the BIA’s

interpretation that jurisdictional elements, such as § 922(g)(1)’s interstate

commerce element, are not necessary for an offense to be an “aggravated felony”

as “described in” § 922(g)(1). Negrete-Rodriguez, 518 F.3d at 502; CastilloRivera, 244 F.3d at 1024; see United States v. Everist, 368 F.3d 517, 519 (5th Cir.
No. 09-60261

6

2004) (describing § 922(g)(1)’s interstate commerce element as a “jurisdictional

requirement”). In its “penultimate sentence,” § 1101(a)(43) states that “[t]he

term [aggravated felony] applies to an offense described in this paragraph

whether in violation of Federal or State law.” 8 U.S.C. § 1101(a)(43). Section

1101(a)(43)’s penultimate sentence plainly evidences Congress’s intent that an

offense constitute an aggravated felony under § 1101(a)(43)(E) regardless of

whether the offense falls within the jurisdiction of the states or the federal

government. Because § 922(g)(1)’s interstate commerce element is simply an

element that ensures federal jurisdiction, finding that such an element is

necessary for a state offense to be one that is “described in” § 922(g)(1) would

undermine Congress’s evident intent that jurisdiction be disregarded in applying

this definition of “aggravated felony.” Negrete-Rodriguez, 518 F.3d at 502

(“Clearly Congress did not intend [§ 922(g)(1)’s jurisdictional element, which] is

not necessary in state law[,] to be the factor determining whether the state

offense can be considered the equivalent of a § 922(g)(1) offense.”). 

The text of § 1101(a)(43) also shows that Congress intended more than a

negligible number of state firearm offenses to be encompassed within §

1101(a)(43)(E)(ii)’s definition of “aggravated felony,” and “interpreting the

jurisdictional element of § 922(g) as essential for a state offense to qualify as an

aggravated felony would” undermine that intent. See Negrete-Rodriguez, 518

F.3d at 501-02 (discussing Castillo-Rivera, 244 F.3d at 1023). Section

1101(a)(43)’s “penultimate sentence” shows that “Congress clearly intended state

crimes to serve as predicate offenses for aggravated felonies,” and the fact that

Congress “used the looser standard ‘described in’ for [§ 1101(a)(43)(E)], rather

than the more precise phrase ‘defined in’ used elsewhere in [§1101(a)(43),
No. 09-60261

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demonstrates] that Congress ‘wanted more than a negligible number of state

[firearms] offenses to count as aggravated felonies.’” Id. Interpreting §

922(g)(1)’s interstate commerce element “as essential for a state offense to

qualify as an aggravated felony” would violate Congress’s intent to include more

than a “negligible number” of state offenses under § 1101(a)(43)(E)(ii), “because

state firearms [statutes] would ‘rarely, if ever’ [contain an interstate commerce

element and convictions under such statutes would rarely, if ever] specify

whether the commerce element was met.” Negrete-Rodriguez, 518 F.3d at 501-02

(“That would eliminate the intended inclusion of most state statutes, since states

do not operate under the same jurisdictional constraints as the federal

government.”); Castillo-Rivera, 244 F.3d at 1023-24 (“Consequently, we do not

believe that this minimal jurisdictional nexus was meant [to] substantially . . .

narrow or to eliminate the range of state offenses that Congress intended to

incorporate under § 1101(a)(43)(E)(ii) . . . .”); Garza, 250 F. App’x at 70. 

We conclude that the BIA’s interpretation of § 1101(a)(43)(E)’s “described

in” language is in accord with the text and purpose of § 1101(a)(43)(E)(ii), and

we adopt it here. 

C. Cancellation of Removal 

The IJ and the BIA found that Nieto was ineligible for cancellation of

removal because his firearms conviction under TPC § 46.04(a) constituted an

“aggravated felony” as “described in” 18 U.S.C. § 922(g)(1). To determine

whether Nieto’s firearm offense constitutes an “aggravated felony,” we apply a

“‘categorical approach,’ under which we refer only to the statutory definition of

the crime for which the alien was convicted . . . and ask whether that

legislatively-defined offense necessarily fits within the INA definition of an
No. 09-60261

 In his brief, Nieto concedes that his offense under TPC § 46.04(a) fits within 8 U.S.C. 6

§ 1101(a)(43)(E)(ii)’s definition of “aggravated felony” in every respect except for the fact that

TPC § 46.04(a) does not contain an interstate commerce element. TPC § 46.04(a) has two

elements that are relevant to this decision: (1) prior felony conviction and (2) possession of a

firearm. 18 U.S.C. § 922(g)(1) has three relevant elements: (1) prior felony conviction; (2)

possession of a firearm; and (3) interstate commerce requirement. Nieto concedes in his brief

that TPC § 46.04(a)’s two elements correspond with 18 U.S.C. § 922(g)(1)’s first two elements.

8

aggravated felony.” Larin-Ulloa v. Gonzales, 462 F.3d 456, 463 (5th Cir. 2006).

We conclude, as we did in Garza, that Nieto’s offense under TPC § 46.04(a) fits

within 8 U.S.C. § 1101(a)(43)(E)(ii)’s definition of “aggravated felony.” Garza,

6

250 F. App’x at 71. Accordingly, the BIA did not err in finding that Nieto was

ineligible for cancellation of removal. 

III. CONCLUSION

For the foregoing reasons, we DENY Nieto’s petition for review.