Cite as
23 I&N Dec. 597 (BIA 2003) Interim Decision #3491
In re Jose Abraham DEANDA-ROMO, Respondent
File A43 951 587 - Dallas
Decided May 8, 2003
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
The respondent, who was convicted of two misdemeanor crimes involving moral turpitude,
is not precluded by the provisions of section 240A(d)(1)(B) of the Immigration and Nationality
Act, 8 U.S.C. § 1229b(d)(1)(B) (2000), from establishing the requisite 7 years of continuous
residence for cancellation of removal under section 240A(a)(2), because his first crime, which
qualifies as a petty offense, did not render him inadmissible, and he had accrued the requisite
7 years of continuous residence before the second offense was committed.
FOR RESPONDENT: J. Joseph Reina, Esquire, Dallas, Texas
FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Beverlei E. Colston,
Assistant District Counsel
BEFORE: Board Panel: FILPPU, GRANT and PAULEY, Board Members.
PAULEY, Board Member:
In a decision dated January 31, 2001, an Immigration Judge found the
respondent removable and denied his applications for cancellation of removal
under section 240A(a) of the Immigration and Nationality Act, 8 U.S.C.
§ 1229b(a) (2000), and for voluntary departure. The respondent has appealed
from that decision. During the pendency of the appeal, the respondent
submitted a motion requesting that the record be remanded to give him an
opportunity to apply for adjustment of status. The appeal will be sustained
and the record will be remanded to the Immigration Judge for further
proceedings.
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 January 8, 1992, and has
remained in that status since that time. On September 21, 1999, he was
convicted in Texas of two misdemeanor offenses of assault with bodily injury
to his spouse, one occurring on October 30, 1998, and the other on June 20,
1999. His sentence for the first offense ultimately included a fine and 180
days in prison, which was suspended to 2 years of probation on the condition
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that he serve 30 days in jail. The sentence for the second offense was similar
except that a term of 300 days in prison was suspended.
At his hearing, the respondent conceded removability and applied for
cancellation of removal for lawful permanent residents under section 240A(a)
of the Act. The Immigration Judge pretermitted the respondent’s application,
finding that he was ineligible for relief under the “stop-time” provisions of
section 240A(d)(1) because his first crime occurred within 7 years of his
admission. In reaching that conclusion, the Immigration Judge rejected the
respondent’s argument that he should not be precluded from establishing the
requisite 7 years of continuous residence on the basis of his first crime
because it was a “petty offense” under section 212(a)(2)(A)(ii)(II) of the Act,
8 U.S.C. § 1182(a)(2)(A)(ii)(II) (2000), and therefore did not render him
inadmissible.
II. ISSUE
The issue in this case is whether an alien who has committed two crimes
involving moral turpitude is precluded by the provisions of section
240A(d)(1)(B) of the Act from establishing the requisite 7 years of
continuous residence for cancellation of removal under section 240A(a)(2),
where his first crime was a petty offense that was committed within the 7-year
period and the second crime was committed more than 7 years after the
alien’s admission to the United States.
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 in pertinent part 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 . . . .
Section 240A(d)(1) provides in relevant part:
For purposes of this section, any period of continuous residence . . . in the United States
shall be deemed to end . . . (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) . . . .1 (Emphasis added.)
1
The remaining language of section 240A(d)(1), referring to an offense under section
212(a)(2) that renders an alien removable under section 237(a)(2) of the Act, 8 U.S.C.
(continued...)
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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).
III. ANALYSIS
It is undisputed that both of the respondent’s convictions are for crimes
involving moral turpitude under section 212(a)(2) of the Act. See Matter of
Tran, 21 I&N Dec. 291 (BIA 1996). Moreover, it is clear that the first crime
falls within the “petty offense” exception in section 212(a)(2)(A)(ii)(II),
because the sentence imposed was not in excess of 6 months in prison. The
respondent argues that he would not have been “rendered inadmissible” under
section 212(a)(2) by virtue of that “petty offense” conviction alone, and that
he would become subject to inadmissibility only through the commission of
his second crime involving moral turpitude, which occurred after he had
accrued the 7 years of continuous residence required for cancellation of
removal. He therefore asserts that the Immigration Judge erred in concluding
that the first offense terminated his accrual of continuous residence under
section 240A(d)(1). We agree.
An alien who has committed only one crime involving moral turpitude
that qualifies as a petty offense is not subject to the grounds of
inadmissibility under section 212(a)(2) of the Act. However, if the alien
commits another crime involving moral turpitude, he is thereafter ineligible
for the “petty offense” exception and becomes inadmissible on the basis of
his criminal activity.2 Therefore, when the respondent committed his second
crime in June 1999, he was subject to inadmissibility under the provisions of
section 212(a)(2) because he was no longer eligible for the “petty offense”
exception.
The question before us, however, is not whether the respondent is
inadmissible by virtue of his two convictions for crimes involving moral
1
(...continued)
§ 1227(a)(2) (2000), is inapplicable here because neither of the respondent’s crimes was
committed within 5 years of his entry.
2
The Immigration Judge properly found that the “petty offense” exception in section
212(a)(2)(A)(ii)(II) of the Act is available to aliens who have committed “only one crime” and
therefore would not generally apply to an alien who has been convicted of two crimes
involving moral turpitude. Cf. Matter of Garcia-Hernandez, 23 I&N Dec. 590 (BIA 2003).
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turpitude, but whether he can establish that he has accrued the 7 years of
continuous residence required for cancellation of removal under section
240A(a)(2) of the Act. Section 240A(d)(1) states that an alien’s continuous
residence is “deemed to end” when he has committed an offense that “renders
[him] inadmissible to the United States under section 212(a)(2).” In this case,
the respondent was not inadmissible on the basis of his first crime because of
the “petty offense” exception, and his continuous residence was only deemed
to end when he committed his second crime in June 1999. However, by the
time he committed that offense, which only at that point rendered him
inadmissible, he had already accrued the necessary 7 years of continuous
residence. We find that this subsequent commission of a crime involving
moral turpitude had no effect on his admissibility during the 7-year period
during which he was required to establish continuous residence. We therefore
conclude that the respondent is not ineligible to apply for cancellation of
removal under section 240A(a) by virtue of his convictions.
Accordingly, the respondent’s appeal will be sustained and the record will
be remanded for further proceedings to allow him to apply for cancellation of
removal and any other relief for which he may be eligible.3
ORDER: The appeal is sustained.
FURTHER ORDER: The record is remanded to the Immigration Court
for further proceedings consistent with this opinion, and for the entry of a new
decision.
3
While the respondent may be eligible for adjustment of status, we have not considered the
question of his eligibility for that relief and are not remanding the record on the basis of his
motion. However, the respondent may submit his application to the Immigration Judge on
remand. See Matter of Patel,
16 I&N Dec. 600, 601 (BIA 1978).
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