Matter Of Hugo Heredia Pedroza, Respondent, File A089 544 685

• Court: U.S. DOJ Board of Immigration Appeals
• Parties: Matter of Hugo Heredia PEDROZA, Respondent
• Docket Number: File A089 544 685
• Decision Date: 13 August 2010

Matter of Hugo Heredia PEDROZA, Respondent

File A089 544 685

U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals

Decided August 13, 2010

FOR RESPONDENT: Elizabeth L. Young, Esquire, Fayetteville, Arkansas

FOR THE DEPARTMENT OF HOMELAND SECURITY: Ryan A. Kahler, Assistant Chief Counsel

U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals

An alien's conviction for a crime involving moral turpitude does not render him ineligible for cancellation of removal under section 240A(b)(1)(C) ofthe Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(1)(C) (2006), if his crime is punishable by imprisonment for a period of less than a year and qualifies for the petty offense exception under section 212(a)(2)(A)(ii)(II) of the Act, 8 U.S.C. § 1182(a)(2)(A)(ii)(II) (2006). Matter of Cortez, 25 I&N Dec. 301 (BIA 2010), followed.

BEFORE: Board Panel: ADKINS-BLANCH and GUENDELSBERGER, Board Members; KENDALL CLARK, Temporary Board Member.

ADKINS-BLANCH, Board Member:

In a decision dated August 17, 2009, an Immigration Judge denied the respondent's application for cancellation of removal under section 240A(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b) (2006), but granted his request for voluntary departure. The respondent has appealed from that decision. The appeal will be sustained and the record will be remanded for further proceedings. The respondent's request to proceed on appeal in forma pauperis is granted under 8 C.F.R. § 1003.8(a)(3) (2010). Matter of Chicas, 19 I&N Dec. 114 (BIA 1984).

I. FACTUAL AND PROCEDURAL HISTORY

The respondent, a native and citizen of Mexico, was placed in removal proceedings and charged with being inadmissible under section 212(a)(6)(A)(i)(I) of the Act, 8 U.S.C. § 1182(a)(6)(A)(i) (2006), because of his entry without inspection in August 1994. The record reflects that he was convicted on February 20, 2001, on a plea of nolo contendere, in the

Page 313

Superior Court of California, County of Los Angeles, of the offense of theft in violation of section 484(a) of the California Penal Code, a misdemeanor for which he was sentenced to serve 10 days in the county jail.

In her decision, the Immigration Judge found that the respondent satisfied the continuous physical presence and good moral character requirements for cancellation of removal under section 240A(b) of the Act, and she concluded that his removal would result in exceptional and extremely unusual hardship to his qualifying United States citizen child, who suffers from a mental disability. However, she found that he was statutorily precluded from establishing eligibility for cancellation of removal on account of his misdemeanor theft conviction, which the respondent failed to show was not for a crime involving moral turpitude. Thus, the Immigration Judge found that the respondent failed to demonstrate that he was not barred from cancellation of removal under section 240A(b)(1)(C) of the Act.

II. ISSUE

The issue presented on appeal is whether an applicant for section 240A(b) cancellation of removal is barred from that relief under section 240A(b)(1)(C) of the Act where the applicant's conviction for a crime involving moral turpitude (1) falls under the petty offense exception and (2) carries a maximum penalty of less than 1 year. We review this question of law de novo and conclude that such a conviction does not bar the applicant from eligibility for cancellation of removal. 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).

III. ANALYSIS

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...