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 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.
Jurisdiction: U.S. Court of Appeals, Fifth Circuit
|Circuit Court Judge(s)|
|Petitioner Lawyer(s)||Petitioner Law Firm(s)|
|Bruce James Godzina||Foster Quan LLP|
|Raed Gonzalez||Foster Quan LLP|
|Respondent Lawyer(s)||Respondent Law Firm(s)|
|Gregory Michael Kelch||United States Department of Justice|
|Ari Nazarov||United States Department of Justice|