To be entitled to cancellation of removal, an alien must show that he has not been convicted of any aggravated felony. Section 1101(a)(43)(E)(ii) of Title 8, United States Code, 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. To determine whether the petitioner’s firearm offense constitutes an “aggravated felony,” this court applies a “‘categorical approach,’ under which this court refers 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 aggravated felony. This court concludes that the petitioner’s offense under TPC § 46.04(a) fits within 8 U.S.C. § 1101(a)(43)(E)(ii)’s definition of “aggravated felony.” Accordingly, the BIA did not err in finding that the petitioner was ineligible for cancellation of removal.
The petitioner’s argument that his conviction for unlawful possession of a firearm under Texas Penal Code (“TPC”) § 46.04(a) 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 is without merit. This court holds that state felon-in possession 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). The petition for review is therefore denied.
This Court has jurisdiction to review legal and constitutional issues raised pertaining to removal orders. 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 this court reviews de novo. In conducting the analysis, this court first reviews the BIA’s interpretation of the INA itself, including its definition of the INA’s words and phrases. This court then reviews de novo whether a petitioner’s conviction under a state statute constitutes an “aggravated felony” and renders him ineligible for cancellation of removal.
This court needs not determine the precise degree of deference to be afforded the BIA’s interpretation because this court concludes that it is correct as a matter of statutory interpretation. 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.
In Castillo-Rivera in Anaya-Ortiz v. Mukasey, 553 F.3d 1266, 1272 (9th Cir. 2009), the Ninth Circuit held that a petitioner’s contention that his conviction was not an aggravated felony as described in § 922(g)(1) because an interstate commerce element was not present was foreclosed by United States v. Castillo-Rivera, 244 F.3d 1020, 1024 (9th Cir. 2001), 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).
The statutory provision at 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. 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). 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.” 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.”
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. 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), demonstrates that Congress wanted more than a negligible number of state firearms offenses to count as aggravated felonies. 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. This court therefore concludes 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 this court adopts it in the instant case.
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