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Mexican Citizen Denied Cancellation of Removal

Hernandez v. Holder, Case No. 09-60261 (C.A. 5, Dec. 30, 2009)

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.

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)
Eugene Davis
Catharina Haynes
Carolyn King

 
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

 

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Click the maroon box above for a formatted PDF of the decision.
commerce element, whereas 922(g)(1) did. the bia rejected nieto's argument, of removal. see id. at 306; united states v. garza, 250 f. app'x 67 (5th cir. inc., 467 u.s. 837, 843 n.9 (1984) ("if a court, employing traditional tools of before king, davis, and haynes, circuit judges. u.s.c. 922(g)(1). accordingly, we deny nieto's petition for review. of the board of immigration appeals's ("bia") decision affirming the government. because 922(g)(1)'s interstate commerce element is simply an possession offenses, such as tpc 46.04(a), need not have an interstate no. 09-60261 2007) (unpublished).2 finding that nieto's conviction under tpc 46.04(a) constituted an aggravated haynes, circuit judge: nieto was ineligible for cancellation of removal. 5 1101(a)(43)'s penultimate sentence plainly evidences congress's intent that an discretionary relief in the form of cancellation of removal is a question of law legislatively-defined offense necessarily fits within the ina definition of an iii. conclusion 922(g)(1)'s interstate commerce element "as essential for a state offense to the bia's interpretation because we conclude that it is correct as a matter of5 2 u.s.c. 1229b(a)(3). the ij found that nieto's conviction under tpc 46.04 possession offense is not required to include a commerce nexus as one of its elements in order 1229b(a), which grants the attorney general discretionary authority to cancel whether in violation of federal or state law." 8 u.s.c. 1101(a)(43). section julian nieto hernandez, clerk jurisdictional element of 922(g) as essential for a state offense to qualify as an tpc 46.04(a) does not contain an interstate commerce element. tpc 46.04(a) has two elements as 922(g)(1); jurisdictional elements, such as 922(g)(1)'s interstate fifth circuit we adopt it here. commerce element, are not necessary for an offense to be an "aggravated felony" conviction was not an aggravated felony as described in 922(g)(1) because "an interstate- charles r. fulbruge iii petitioner julian nieto hernandez ("nieto") petitions this court for review in" language is in accord with the text and purpose of 1101(a)(43)(e)(ii), and term [aggravated felony] applies to an offense described in this paragraph for cancellation of removal. definition of aggravated felony, and, based on that finding, the ij concluded that congress "used the looser standard `described in' for [ 1101(a)(43)(e)], rather c. cancellation of removal code ("tpc") 46.04(a). rivera, 244 f.3d at 1024; see united states v. everist, 368 f.3d 517, 519 (5th cir. nieto only appeals the ij and the bia's cancellation decision. thus, the only issue1 firearm. 18 u.s.c. 922(g)(1) has three relevant elements: (1) prior felony conviction; (2) whether nieto's firearm offense constitutes an "aggravated felony," we apply a "described in" 18 u.s.c. 922(g)(1). commerce element [was] not present" was "foreclosed by united states v. castillo-rivera, for the fifth circuit aggravated felony." larin-ulloa v. gonzales, 462 f.3d 456, 463 (5th cir. 2006). in his brief, nieto concedes that his offense under tpc 46.04(a) fits within 8 u.s.c.6 for the foregoing reasons, we deny nieto's petition for review. nieto then appealed the bia's decision to this court, pressing the same removal because his firearms conviction under tpc 46.04(a) constituted an decision in lopez v. gonzales, 549 u.s. 47 (2006). nieto's reliance on lopez is misplaced. the i. factual and procedural background nieto's conviction under tpc 46.04 fell under 8 u.s.c. 1101(a)(43)(e)(ii)'s crimes to serve as predicate offenses for aggravated felonies," and the fact that this definition of "aggravated felony." negrete-rodriguez, 518 f.3d at 502 than a "negligible number" of state offenses under 1101(a)(43)(e)(ii), "because but only punishable as a misdemeanor under the federal controlled substances act could that tpc 46.04(a)'s two elements correspond with 18 u.s.c. 922(g)(1)'s first two elements. which held that a state crime of conviction need not have the interstate-commerce element elements that are relevant to this decision: (1) prior felony conviction and (2) possession of a 207 (b.i.a. 2002), which held that state felon-in-possession offenses need not of marijuana under texas health & safety code ("thsc") 481.121. one year we conclude, as we did in garza, that nieto's offense under tpc 46.04(a) fits whether the commerce element was met." negrete-rodriguez, 518 f.3d at 501-02 we conclude that the bia's interpretation of 1101(a)(43)(e)'s "described 8 u.s.c. 1101(a)(43)(e)(ii) defines "aggravated felony" as an offense narrow or to eliminate the range of state offenses that congress intended to ("that would eliminate the intended inclusion of most state statutes, since states bia interpretation at issue); garza, 250 f. app'x at 71 ("looking at 922(g)(1), to qualify as an aggravated felony for sentencing purposes."). nieto asserts in his brief that does not contain an interstate commerce element. we hold that state felon-in- f.3d at 501-02 (discussing castillo-rivera, 244 f.3d at 1023). section undermine congress's evident intent that jurisdiction be disregarded in applying nieto appealed the ij's cancellation decision to the bia. in his brief to the petitioner the crime for which the alien was convicted . . . and ask whether that within 8 u.s.c. 1101(a)(43)(e)(ii)'s definition of "aggravated felony." garza,6 8 we have previously stated that we "afford considerable `deference to the bia's5 element that ensures federal jurisdiction, finding that such an element is interpretation'" of the ina. fonseca-leite v. ins, 961 f.2d 60, 62 (5th cir. 1992) ("in commerce element in order for the offense to be an offense "described in" 18 negrete-rodriguez v. mukasey, 518 f.3d 497, 503 (7th cir. 2008) (adopting the respondent v. mukasey, 553 f.3d 1266, 1272 (9th cir. 2009) (stating that a petitioner's contention that his element and convictions under such statutes would rarely, if ever] specify bia, nieto argued that the ij erred in finding that his firearms conviction under statutory interpretation. see chevron u.s.a., inc. v. natural res. def. council, interpretation that jurisdictional elements, such as 922(g)(1)'s interstate that we review de novo." id. in conducting our analysis, we first review the possession of a firearm; and (3) interstate commerce requirement. nieto concedes in his brief conducting our reviews we are constrained to give considerable deference to the bia's was not an offense described in 18 u.s.c. 922(g)(1) because tpc 46.04(a) court's decision in lopez only considered whether "conduct treated as a felony by the state" states in 1981. in 1997, nieto was convicted of second degree felony possession the core of the offense proscribed is conviction of a felony and ownership and felony as described in 922(g)(1). nieto argues that the bia's interpretation is3 state firearms [statutes] would `rarely, if ever' [contain an interstate commerce finding that it was foreclosed by its decision in vasquez-muniz, 23 i. & n. dec. proscribed by state law, not just the elements of the state law offense and compares that government."); castillo-rivera, 244 f.3d at 1023-24 ("consequently, we do not not necessary in state law[,] to be the factor determining whether the state the ninth circuit recently affirmed and applied the holding in castillo-rivera in anaya-ortiz statutory construction, ascertains that congress had an intention on the precise offense can be considered the equivalent of a 922(g)(1) offense."). do not operate under the same jurisdictional constraints as the federal demonstrates] that congress `wanted more than a negligible number of state ineligible for cancellation of removal. argument that he made before the bia.1 alien must show that he "has not been convicted of any aggravated felony." 8 commerce element, are irrelevant. see vasquez-muniz, 23 i. & n. dec. at 210- [firearms] offenses to count as aggravated felonies.'" id. interpreting board of immigration appeals as "described in" 922(g)(1). negrete-rodriguez, 518 f.3d at 502; castillo- nieto argues that the bia erred in finding that his firearms conviction summary calendar no. 09-60261 calculation. we find the reasoning of that opinion persuasive and adopt it here. raised pertaining to removal orders." vasquez-martinez v. holder, 564 f.3d 712, 7 immigration judge's ("ij") denial of his petition for cancellation of removal. we incorporate under 1101(a)(43)(e)(ii) . . . ."); garza, 250 f. app'x at 70. 715 (5th cir. 2009). "the bia's determination that an alien is ineligible for no. 09-60261 negligible number of state firearm offenses to be encompassed within december 30, 2009 under tpc 46.04(a) was an "aggravated felony" under 8 u.s.c. section 1101(a)(43)'s "penultimate sentence" supports the bia's whether the offense falls within the jurisdiction of the states or the federal question at issue, that intention is the law and must be given effect."); see also of aggravated felony. see also carachuri-rosendo v. holder, 570 f.3d 263, 266 (5th cir. 2009) charged nieto with removal under the immigration and nationality act ("ina"). interpretation of the legislative scheme it is entrusted to administer." (citing chevron u.s.a., contained in 18 u.s.c. 922(g)(1) to qualify as an aggravated felony under conduct to federal law"), cert. granted, 78 u.s.l.w. 3359 (u.s. dec. 14, 2009) (no. 09-60). eric h. holder, jr., u. s. attorney general, although unpublished opinions are not precedent, this case addressed the exact2 bia's interpretation of the ina itself, including its definition of the ina's words 1101(a)(43)(e)(ii)'s definition of "aggravated felony" in every respect except for the fact that 250 f. app'x at 71. accordingly, the bia did not err in finding that nieto was to mexico, nieto petitioned the ij to cancel his removal under 8 u.s.c. the bia's interpretation is based on a ninth circuit decision, united states v.3 "described in" 18 u.s.c. 922(g)(1). according to the bia, for an offense to be petition for review of an order of the 1101(a)(43)(e)(ii)"). inc. v. natural res. def. council, inc., 467 u.s. 837 (1984))). have an interstate commerce element in order for the offense to be an offense and phrases. omari v. gonzales, 419 f.3d 303, 306 (5th cir. 2005). we then castillo-rivera, 244 f.3d 1020, 1024 (9th cir. 2001) ("we thus hold that a state felon in necessary for a state offense to be one that is "described in" 922(g)(1) would "described in" 18 u.s.c. 922(g)(1). nieto argues that his firearms conviction a. jurisdiction and standard of review incorrect. we need not determine the precise degree of deference to be afforded4 1101(a)(43)(e)(ii), which defines "aggravated felony" as including an offense united states court of appeals tpc 46.04(a) constituted an aggravated felony. specifically, he argued that his 481.121 made him subject to removal under the ina. to avoid being removed 922(g)(1), it is unlawful for any person who has been convicted of a felony to 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 (explaining that lopez provides a "hypothetical approach" where a court "looks to conduct than the more precise phrase `defined in' used elsewhere in [1101(a)(43), at his removal hearing, nieto conceded that his conviction under thsc 3 requirement"). in its "penultimate sentence," 1101(a)(43) states that "[t]he "`categorical approach,' under which we refer only to the statutory definition of no. 09-60261 no. 09-60261 conviction under tpc 46.04(a) was not an aggravated felony as "described in" before us is whether the bia erred in affirming the ij's conclusion that nieto was ineligible possession of a handgun."). constitutes an "aggravated felony" and renders him ineligible for cancellation because of his convictions, the department of homeland security ("dhs") aggravated felony would" undermine that intent. see negrete-rodriguez, 518 offense constitute an aggravated felony under 1101(a)(43)(e) regardless of constitute an "aggravated felony" as defined by 8 u.s.c. 1227(a)(2)(a)(iii). id. at 50, 60. the in the united states court of appeals 18 u.s.c. 922(g)(1) because tpc 46.04(a) did not contain an interstate review de novo whether a petitioner's conviction under a state statute the removal of an otherwise removable alien. to be entitled to cancellation, an find no error in the bia's decision. accordingly, we deny nieto's petition. the ij and the bia found that nieto was ineligible for cancellation of no. 09-60261 ii. discussion 4 1101(a)(43)(e)(ii) defines "aggravated felony" as including "an offense described 1101(a)(43)(e)(ii)'s definition of "aggravated felony," and "interpreting the 11, 213. the bia applied this interpretation of the ina in affirming the ij's the ninth circuit's decision in castillo-rivera was overruled. nieto's assertion is incorrect. believe that this minimal jurisdictional nexus was meant [to] substantially . . . b. meaning of 8 u.s.c. 1101(a)(43)(e) this court has jurisdiction to review "legal and constitutional issues question presented here, interpreting the same statutes in the context of a sentencing nieto is a native and citizen of mexico. he was admitted into the united v. possess, in or affecting interstate commerce, any firearm. the ij found that the text of 1101(a)(43) also shows that congress intended more than a no. 09-60261 no. 09-60261 6 later, nieto was convicted of unlawful possession of a firearm under texas penal qualify as an aggravated felony" would violate congress's intent to include more 2004) (describing 922(g)(1)'s interstate commerce element as a "jurisdictional "aggravated felony" as "described in" 18 u.s.c. 922(g)(1). to determine court did not consider whether state firearm offenses need to have the same jurisdictional f i l e d 1101(a)(43)'s "penultimate sentence" shows that "congress clearly intended state in section 922(g)(1) . . . of title 18, united states code." under 18 u.s.c. nieto also argues that the bia's interpretation is contrary to the supreme court's4 was for an "aggravated felony" under 8 u.s.c. 1101(a)(43)(e)(ii). section ("clearly congress did not intend [ 922(g)(1)'s jurisdictional element, which] is "described in" 18 u.s.c. 922(g)(1), it only has to have the same substantive


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