Matter of Heredia-Pedroza (B.I.A. 8/13/2010)

In a ruling which is sure to bring sighs of relief to many affected persons, the BIA determined that the respondent may be eligible for cancellation of removal even though he had been convicted of a crime of moral turpitude, because the petty offense exception applies even to crimes involving moral turpitude.

The respondent, a citizen of Mexico, was placed in removal proceedings by the government on account of being an alien who entered without inspection.  He applied for cancellation of removal because he had been physically present in the country since 1994, he had a qualifying relative (a minor child), he possessed good moral character, and his removal would result in exceptional and extremely unusual hardship for his child.  The immigration judge who heard his case found he met the initial prerequisites for a grant of relief.  That is, he has physically resided in the United States for at least ten years, he had a qualifying relative who was a U.S. citizen, he established good moral character, and because his child had mental disabilities, the respondent’s removal would cause exceptional and extremely unusual hardship on his child.

In 2001, however, the respondent had been convicted of shoplifting in violation of § 484(a) of the California Penal Code, a petty theft misdemeanor.  The respondent had been sentenced to ten days in jail for this conviction.  Due to this conviction, the immigration judge found that the respondent was statutorily barred from qualifying for cancellation of removal (even though he met every qualification) because his petty theft was a crime of moral turpitude.  On appeal, the BIA reversed, holding that the petty offense exception applies to crimes involving moral turpitude.

The petty offense exception as established by § 212(a)(2)(A)(ii)(II) of the INA provides that if a person applying for relief from removal proceedings has committed only one crime and such crime carries a maximum possible sentence of one year or less of imprisonment, the person would not be considered inadmissible.  Such person could therefore qualify for immigration benefits.  There was a question as to whether the petty offense exception would apply in a situation where the crime involved moral turpitude.  The BIA clarified its position and found that the exception would apply.

In this case, in keeping with existing caselaw, the BIA found that shoplifting was indeed a crime involving moral turpitude.  However, because shoplifting was treated by California law as a misdemeanor, only carrying a maximum sentence of six months, and/or a fine not exceeding $1000, it clearly fell within the definition of a petty offense.  Because the petitioner had only one conviction, and such conviction was a misdemeanor, the petty offense exception of the immigration laws applied to him.  For this reason, he remained eligible for cancellation of removal despite his being convicted of a crime involving moral turpitude.  Generally, being convicted of a crime involving moral turpitude (most theft crimes) would mean a complete bar to any type of immigration relief, unless the petty offense exception applies.