BIA Issues Two Precedent Decisions Concerning The "Petty Offense" Exception To Inadmissibility For A Crime Of Moral Turpitude

IMMIGRATION LAW & POLICY

Removal Issues Concerning Criminal Convictions

BIA ISSUES TWO PRECEDENT DECISIONS CONCERNING THE “PETTY OFFENSE” EXCEPTION TO INADMISSIBILITY FOR A CRIME OF MORAL TURPITUDE
Immigrants' Rights Update, Vol. 17, No. 4, July 15, 2003

The Board of Immigration Appeals has issued two precedent decisions that concern the “petty offense” exception to the ground of inadmissibility for commission of a crime of moral turpitude. In Matter of Garcia-Hernandez, 23 I. & N. Dec. 590 (BIA May 8, 2003), the BIA found that conviction for a crime of moral turpitude that meets the criteria for the petty offense exception does not render a non–U.S. citizen ineligible for non-LPR cancellation of removal. The BIA also found that a noncitizen who has committed more than one petty offense still qualifies for the “petty offense” exception if only one of the crimes involves moral turpitude. In the second case, Matter of Deanda-Romo, 23 I. & N. Dec. 597 (BIA May 8, 2003), the BIA found that a conviction for a crime of moral turpitude that meets the criteria of the petty offense exception does not stop the accrual of time towards continuous physical presence under the “stop-time rule.”

As background, section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act provides that a noncitizen who has been convicted, or who admits the essential elements, of a crime involving moral turpitude is inadmissible. Section 212(a)(2)(A)(ii) establishes two “exceptions” to this ground (known as the “juvenile” exception and the “petty offense” exception), for noncitizens who “committed only one crime,” where the crime meets certain defined criteria. To qualify for the “petty offense” exception, the maximum penalty possible for the crime cannot exceed imprisonment for one year, and the noncitizen must not have been sentenced to a term of imprisonment longer than 6 months. INA § 212(a)(2)(A)(ii)(II).

In Garcia-Hernandez, the respondent had been convicted for battery in 1994 and for corporal injury to a spouse in 1997. At his removal hearing, Garcia-Hernandez applied for non-LPR cancellation of removal and for voluntary departure in the alternative. The immigration judge determined that the respondent’s conviction for spousal injury was for a crime involving moral turpitude. The IJ concluded that the respondent was not eligible for the petty offense exception, because he had not been convicted of “only one crime.” The IJ also found that Garcia-Hernandez was not eligible for non-LPR cancellation because of section 240A(b)(1)(B), which, among other things, bars eligibility for individuals who have “been convicted of an offense under section 212(a)(2)” of the INA. In addition, the IJ found that the respondent could not meet the “good moral character” requirement for non-LPR cancellation because of section 101(f)(3), which provides, among other things, that an individual cannot be considered to have good moral character if, during the period for which good moral character is required, he or she is among “the class[] of persons, whether inadmissible or not, described in . . . subparagraphs (A) and (B) of section 212(a)(2)” of the INA. The IJ pretermitted the cancellation application, and Garcia-Hernandez appealed.

On appeal, the BIA agreed with the IJ that the conviction for spousal injury constitutes a crime involving moral turpitude. However, the BIA noted that “this conviction, considered alone, clearly qualifies for the ‘petty offense’ exception.” For this reason, the BIA concluded that Garcia-Hernandez was not “convicted of an offense under section 212(a)(2),” and so he remains eligible for non-LPR cancellation. Similarly, Garcia-Hernandez is not barred from establishing good moral character, since he is not in the class of persons “described in” section 212(a)(2)(A).

The BIA also concluded that the restriction of the “petty offense” exception to persons convicted of “only one crime” applies only to other crimes involving moral turpitude. The BIA found strong support for this interpretation in the history of the petty offense exception. As it was first enacted in 1952, the one-crime limitation expressly applied to “only one such crime” of moral turpitude. Section 212 was thoroughly revised by the Immigration Act of 1990, but after reviewing these changes the BIA found “no indication” that the deletion of the word “such” was anything more than “a stylistic change.” Because Garcia-Hernandez’s other conviction was not for a crime of moral turpitude, he is not precluded from taking advantage of the exception.

In Deanda-Romo, the respondent was a lawful permanent resident who had been convicted of two crimes involving moral turpitude. The first crime was committed within seven years of his admission to the U.S., but the second crime was committed more than seven years after the admission. At his removal hearing, Deanda-Romo applied for LPR cancellation of removal under INA sec. 240A(a). This relief does not require a showing of good moral character, but it does require a showing of seven years’ continuous residence in the United States. The immigration judge concluded that Deanda-Romo could not meet the continuous residence requirement because of the “stop-time” rule of INA sec. 240A(d)(1). Under this rule, the accrual of time towards continuous residence is stopped, among other events, when a noncitizen “has committed an offense referred to in section 212(a)(2) that renders him inadmissible.” The IJ rejected Deanda-Romo’s contention that because his first offense was a “petty offense,” it did not make him inadmissible and should not be considered to stop the accrual of continuous residence. The IJ pretermitted the cancellation application, and Deanda-Romo appealed.

On appeal, the BIA determined that the commission of the first crime did not preclude Deanda-Romo from establishing seven years’ continuous residence. When the first crime was committed, he was eligible for the petty offense exception, and therefore not “inadmissible.” It was only at the time of Deanda-Romo’s second conviction for a crime of moral turpitude that he became ineligible for the petty offense exception, and by that time he already had accrued more than seven years’ continuous presence. Accordingly, the BIA sustained the appeal and remanded the case to the IJ for further proceedings.