In re Garcia-Hernandez
| Decision Date | 08 May 2003 |
| Docket Number | Interim Decision Number 3490,File A74 108 643. |
| Parties | In re Fidel GARCIA-HERNANDEZ, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated July 29, 1998, an Immigration Judge found the respondent removable and denied his applications for cancellation of removal under section 240A(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b) (Supp. IV 1998), and for voluntary departure. The respondent has appealed from that decision. The appeal will be sustained and the record will be remanded to the Immigration Judge for further proceedings.
The respondent is a native and citizen of Mexico who entered the United States without inspection or parole. Removability is not in dispute. The respondent was served a Notice to Appear (Form I-862) on May 14, 1997, and in due course applied for cancellation of removal for nonpermanent residents and, in the alternative, for voluntary departure.
In his decision, the Immigration Judge pretermitted the cancellation application based on the respondent's conviction in 1997 for corporal injury to a spouse in violation of section 273.5 of the California Penal Code, for which he was sentenced to probation on the condition that he serve 90 days in custody. The Immigration Judge determined that under Matter of Tran, 21 I&N Dec. 291 (BIA 1996), this conviction was for a crime involving moral turpitude. The Immigration Judge further determined that the respondent was not eligible for the "petty offense" exception in section 212(a)(2)(A)(ii)(II) of the Act, 8 U.S.C. § 1182(a)(2)(A)(ii)(II) (1994), because he had not been convicted of "only one crime." The Immigration Judge based this finding on the respondent's 1994 conviction for battery under section 242 of the California Penal Code, a crime not involving moral turpitude, for which the respondent was sentenced to probation on the condition that he serve 15 days in custody or in a work release program. The Immigration Judge accordingly found that the respondent was ineligible for cancellation of removal under section 240A(b)(1)(C) of the Act because he had been convicted of an offense under section 212(a)(2).
The Immigration Judge further found that the respondent could not meet the requirement in section 240A(b)(1)(B) of the Act that he establish he was a person of good moral character during the requisite 10-year period, because his 1997 conviction placed him among the "class[] of persons, whether inadmissible or not, described in ... subparagraphs (A) and (B) of section 212(a)(2)," within the meaning of section 101(f)(3) of the Act, 8 U.S.C. § 1101(f)(3) (Supp. IV 1998), which defines good moral character.
This case presents two principal questions: (1) whether an alien is ineligible for cancellation of removal under section 240A(b)(1) of the Act if he committed a crime involving moral turpitude that falls within the "petty offense" exception in section 212(a)(2)(A)(ii)(II); and, if not, (2) whether the commission of another offense that is not a crime involving moral turpitude renders the "petty offense" exception inapplicable.
Section 240A(b)(1) of the Act, which sets forth the criteria to establish eligibility for cancellation of removal for certain nonpermanent residents, provides in pertinent part as follows:
The Attorney General may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States if the alien—
(A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application;
(B) has been a person of good moral character during such period;
(C) has not been convicted of an offense under section 212(a)(2), 237(a)(2) ....
(Emphasis added.)
Section 212(a)(2)(A) provides in relevant part:
(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). (Emphasis added.)
Section 101(f) provides in relevant part:
For the purposes of this Act—No person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established, is, or was
...
(3) a member of one or more of the classes of persons, whether inadmissible or not, described in ... subparagraphs (A) and (B) of section 212(a)(2) ...; if the offense described therein, for which such person was convicted ..., was committed during such period .... (Emphasis added.)
We first address whether the respondent's 1997 conviction for spousal injury rendered him ineligible for cancellation of removal under section 240A(b)(1)(C), or sections 240A(b)(1)(B) and 101(f)(3) of the Act. We conclude that it does not.
We agree that the respondent's 1997 conviction is for a crime involving moral turpitude. See Matter of Tran, supra (). However, this conviction, considered alone, clearly qualifies for the "petty offense" exception. The respondent was convicted under a misdemeanor statute that carried a maximum sentence of no more than 1 year in prison,1 and he received a sentence of less than 6 months. Accordingly, we conclude that the respondent would not be inadmissible on the basis of this offense.
We further find that this conviction, standing alone, does not render the respondent ineligible for cancellation of removal under section 240A(b)(1)(C) of the Act, which requires an applicant to show that he "has not been convicted of an offense under section 212(a)(2)." We view the plain language of this provision as incorporating the entirety of section 212(a)(2), including the exception for petty offenses set forth therein. Accordingly, we find that the "petty offense" exception also applies when determining eligibility for cancellation of removal.
For similar reasons, the respondent cannot be considered, on the basis of his 1997 conviction alone, an alien "described in" section 212(a)(2)(A) of the Act for purposes of the good moral character definition in section 101(f)(3). We find that an alien is not within the class of aliens described in section 212(a)(2)(A) if the "petty offense" exception applies to his or her crime. See Matter of Urpi-Sancho, 13 I&N Dec. 641 (BIA 1970) (); Matter of M----, 7 I&N Dec. 147 (BIA 1956) (). Put in other terms, the "description" of the category of offenses encompassing crimes involving moral turpitude also includes the exception. Accordingly, the respondent is not barred, on the basis of the 1997 conviction alone, from establishing good moral character for purposes of section 240A(b)(1)(B) of the Act.2
Therefore, we do not find that the respondent's 1997 conviction for spousal injury is a conviction for a crime involving moral turpitude that disqualifies him from establishing eligibility for cancellation of removal under section 240A(b)(1)(C), or under sections 240A(b)(1)(B) and 101(f)(3).
In his central holding, the Immigration Judge found that section 212(a)(2)(A)(ii) of the Act precluded the respondent from taking advantage of the "petty offense" exception because he had not been convicted of "only one crime." We do not agree.
The "only one crime" proviso, taken in context, is subject to two principal interpretations: (1) that it is triggered, as the Immigration Judge determined, by the commission of any other crime, including a mere infraction; or (2) that it is triggered only by the commission of another crime involving moral turpitude. So...
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