Cite as 25 I&N Dec. 332 (BIA 2010) Interim Decision #3695
1 The respondent’s request for oral argument is denied. See 8 C.F.R. § 1003.1(e)(7) (2010).
332
Matter of Armando GARCIA, Respondent
File A076 405 204 – Oklahoma City, Oklahoma
Decided September 13, 2010
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
A conviction for a single crime involving moral turpitude that qualifies as a petty offense
is not for an “offense referred to in section 212(a)(2)” of the Immigration and Nationality
Act, 8 U.S.C. § 1182(a)(2) (2006), for purposes of triggering the “stop-time” rule in section
240A(d)(1) of the Act, 8 U.S.C. § 1229b(d)(1) (2006), even if it renders the alien removable
under section 237(a)(2)(A)(i) of the Act, 8 U.S.C. § 1227(a)(2)(A)(i) (2006).
FOR RESPONDENT: Arthur Campbell Cooke, Esquire, Tulsa, Oklahoma
BEFORE: Board Panel: FILPPU, PAULEY, and WENDTLAND, Board Members.
PAULEY, Board Member:
In a decision dated May 12, 2009, an Immigration Judge found the
respondent removable, denied his application for cancellation of removal
under section 240A(a) of the Immigration and Nationality Act, 8 U.S.C.
§ 1229b(a) (2006), and granted his request for voluntary departure. The
respondent has appealed from the denial of cancellation of removal. The
appeal will be sustained and the record will be remanded to the Immigration
Judge for further proceedings.1
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Mexico who was admitted to the
United States as a lawful permanent resident on or about March 3, 1999. The
record reflects that the respondent was convicted on October 23, 2001,
of misdemeanor assault and battery, domestic, in violation of Oklahoma law,
for which the maximum penalty is confinement of 1 year, and for which
he was sentenced to 3 years of probation. Removal proceedings were initiatedCite as 25 I&N Dec. 332 (BIA 2010) Interim Decision #3695
333
against the respondent with the service of a Notice to Appear (Form I-862)
on October 20, 2006.
The Immigration Judge found that the respondent is removable under
section 237(a)(2)(A)(i) of the Act, 8 U.S.C. § 1227(a)(2)(A)(i) (2006),
as an alien convicted of a crime involving moral turpitude committed within
5 years after the date of admission. The Immigration Judge also denied the
respondent’s application for cancellation of removal based on his
October 2001 conviction for a crime involving moral turpitude, which had
been committed the previous June. Specifically, the Immigration Judge found
that although the respondent’s crime involving moral turpitude qualified
as a petty offense under section 212(a)(2)(A)(ii)(II) of the Act, 8 U.S.C.
§ 1182(a)(2)(A)(ii)(II) (2006), the “stop-time” rule in section 240A(d)(1) was
triggered because the offense was “referred to” in section 212(a)(2)(A)(i)(I).
The Immigration Judge therefore concluded that the respondent was unable
to establish the 7 years of continuous residence required by section
240A(a)(2). We review this question of law de novo and disagree with the
Immigration Judge. See 8 C.F.R. § 1003.1(d)(3)(ii) (2010); see also
Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008).
II. ISSUE
The respondent does not challenge the Immigration Judge’s determination
that his conviction was for a crime involving moral turpitude, and his
removability is not in dispute. Thus, the sole issue on appeal is whether
the language of section 240A(d)(1) of the Act, “an offense referred
to in section 212(a)(2),” insofar as it relates to crimes involving moral
turpitude, incorporates the petty offense exception.
III. APPLICABLE STATUTES
Section 240A(a) of the Act, which sets forth the criteria to establish
eligibility for cancellation of removal for certain permanent residents, provides
as follows:
The Attorney General may cancel removal in the case of an alien who
is inadmissible or deportable from the United States if the alien—
(1) has been an alien lawfully admitted for permanent residence for not less than
5 years,
(2) has resided in the United States continuously for 7 years after having been
admitted in any status, and
(3) has not been convicted of any aggravated felony.Cite as 25 I&N Dec. 332 (BIA 2010) Interim Decision #3695
334
Section 240A(d)(1), which provides special rules for determining an alien’s
continuous residence or physical presence, states the following, in relevant part:
For purposes of this section, any period of continuous residence or continuous
physical presence in the United States shall be deemed to end (A) . . . when the alien
is served a notice to appear . . . , or (B) when the alien has committed an offense
referred to in section 212(a)(2) that renders the alien inadmissible to the United States
under section 212(a)(2) or removable from the United States under section 237(a)(2)
or 237(a)(4), whichever is earliest.
(Emphasis added.)
Section 212(a)(2)(A) of the Act sets forth, in pertinent part, the ground
of inadmissibility relating to crimes involving moral turpitude and the petty
offense exception as follows:
(i) In General
Except as provided in clause (ii), any alien convicted of . . . —
(I) a crime involving moral turpitude . . .
is inadmissible.
(ii) Exception
Clause (i)(I) shall not apply to an alien who committed only one crime if—
. . .
(II) the maximum penalty possible for the crime of which the alien was convicted
. . . did not exceed imprisonment for one year and . . . the alien was not sentenced
to a term of imprisonment in excess of 6 months (regardless of the extent to which the
sentence was ultimately executed).
IV. ANALYSIS
The “offense-related” portion of the stop-time rule, section 240A(d)(1)(B)
of the Act, contains two conditions that must be met to halt accrual
of continuous residence under section 240A(a)(2). The offense must be one
that is “referred to in section 212(a)(2),” and it also must be one that “renders
the alien inadmissible . . . or removable” on specified grounds. In this case,
we focus on the “referred to in section 212(a)(2)” clause, because
it is undisputed that the respondent’s October 2001 conviction for a crime
involving moral turpitude committed within 5 years after his March 1999
admission renders him removable, as charged, under section 237(a)(2)(A)(i).
As the Immigration Judge determined, the respondent’s crime falls within
the “petty offense” exception in section 212(a)(2)(A)(ii)(II) of the Act, since
the maximum penalty possible for the crime did not exceed imprisonment for
1 year and the respondent was not sentenced to a term of imprisonment
in excess of 6 months. Because the respondent’s conviction renders him
removable prior to his accrual of the requisite 7 years of continuous residence
for cancellation of removal, it is necessary to examine whether his convictionCite as 25 I&N Dec. 332 (BIA 2010) Interim Decision #3695
2 We did not analyze the “offense referred to” clause in Matter of Deanda-Romo, 23 I&N
Dec. 597 (BIA 2003). Instead, in that case, we focused on the “renders the alien
inadmissible . . . or removable” clause. Specifically, we found that the respondent’s two
convictions for crimes involving moral turpitude did not stop time before he established the
requisite 7 years of continuous residence, because the first conviction was for a petty offense
for which the respondent was not inadmissible (so it did not “render [him] inadmissible”
under section 212(a)(2) within the meaning of section 240A(d)(1) of the Act), and the second
offense did not occur until after the respondent had accrued the necessary period
of continuous residence. We also observed that the remaining language in section
240A(d)(1), referencing an offense that renders an alien removable under section 237(a)(2),
was inapplicable because neither of the crimes of the respondent in that case was committed
within 5 years of admission. The situation here is different, because the respondent’s crime
was committed within 5 years of his admission. Hence, unlike in Matter of Deanda-Romo,
the respondent’s offense renders him removable under section 237(a)(2) and would trigger
the stop-time rule if it was also an offense “referred to in section 212(a)(2).”
335
for a single petty offense is “an offense referred to in section 212(a)(2),” which
would trigger the stop-time rule in section 240A(d)(1).2
We conclude that
it is not.
In Matter of Garcia-Hernandez, 23 I&N Dec. 590, 593 (BIA 2003), we held
that for purposes of determining eligibility for cancellation for certain
nonpermanent residents, the language of section 240A(b)(1)(C) of the Act,
“convicted of an offense under section 212(a)(2),” did not encompass a crime
involving moral turpitude that was subject to the petty offense exception,
because the plain language of the statute referenced the entirety of section
212(a)(2), including the petty offense aspect. Likewise, we held that an alien
was not convicted of an offense “described in” section 212(a)(2)(A) for
purposes of the good moral character definition in section 101(f)(3) of the Act,
8 U.S.C. § 1101(f)(3) (Supp. IV 1998), where the crime was subject to the
petty offense exception. Id.; see also Matter of Pedroza, 25 I&N Dec. 312
(BIA 2010) (holding that the alien’s conviction for a crime involving moral
turpitude was not “described under” either section 212(a)(2) or 237(a)(2)(A)(i)
of the Act where the maximum possible sentence for his crime was less
than 1 year and he was sentenced to 10 days in jail, so it did not render
him ineligible for cancellation of removal under section 240A(b)(1)(C) of the
Act); cf. Matter of Cortez, 25 I&N Dec. 301 (BIA 2010) (explaining that the
alien’s conviction was for an offense that was punishable by a sentence
to imprisonment for a year and was therefore “described under” section
237(a)(2), even though it otherwise qualified for the petty offense exception
and was therefore not “described under” section 212(a)(2)).
We similarly conclude that the phrase “an offense referred to in section
212(a)(2)” of the Act also incorporates the petty offense exception for
purposes of the stop-time rule in section 240A(d)(1), because the “offense”
referred to is qualified by the petty offense exception in section 212(a)(2)Cite as 25 I&N Dec. 332 (BIA 2010) Interim Decision #3695
3
We note that while Matter of Cortez, 25 I&N Dec. 301, addressed a similar petty offense
issue, that case is distinguishable because it involved different language in another provision
of the Act. In Cortez, even though the alien’s conviction qualified for the petty offense
exception, we held that her offense was “described under” section 237(a)(2) on the basis
of the sentence that could have been imposed. She was therefore ineligible for cancellation
of removal pursuant to section 240A(b)(1)(C) of the Act. The analysis in this case focuses
on the “referred to in section 212(a)(2)” clause of section 240A(d)(1) and requires a different
result.
336
itself.3
See also Matter of Campos-Torres, 22 I&N Dec. 1289, 1292-95
(BIA 2000) (recognizing that in section 240A(d)(1) of the Act, Congress
enacted a rule requiring a determination that an offense is included in section
212(a)(2) before it will operate to cut off the accrual of time, and holding that
the alien’s firearms offense, which rendered him deportable under section
237(a)(2)(C), did not “stop time” under section 240A(d)(1) because it was not
“referred to in section 212(a)(2)”). In other words, a conviction for a single
crime involving moral turpitude that is subject to the petty offense exception
does not stop time. Therefore, the respondent is not barred by his conviction
for a single petty offense from establishing the 7 years of continuous residence
required to establish eligibility for cancellation of removal under section
240A(a)(2) of the Act.
V. CONCLUSION
The respondent’s period of continuous residence began when he was
admitted as a lawful permanent resident in March of 1999. The Notice
to Appear was not served until more than 7 years later in October of 2006, and
the respondent’s 2001 conviction for a petty offense had not independently
stopped his continuous residence from accruing. See section 240A(d)(1) of the
Act. Therefore, the respondent has satisfied the continuous residence
requirement of section 240A(a)(2). Accordingly, his appeal will be sustained
and the record will be remanded to the Immigration Judge for a hearing on the
merits of the respondent’s application for cancellation of removal.
ORDER: The appeal is sustained.
FURTHER ORDER: The record is remanded to the Immigration Judge
for further proceedings consistent with the foregoing opinion and for the entry
of a new decision.