State conviction for felon in possession of firearm is an aggravated felony despite lack of interstate commerce element in State offense

Nieto Hernadez v. Holder, No. 09-60261 (5th Cir. Dec. 30, 2009).
Nieto argued that the Board of Immigration Appeals’s (“BIA”) 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 5th affirmed the BIA's ruling noting that "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)."