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Matter of Hugo Heredia PEDROZA, Respondent

File A089 544 685 - Tacoma, Washington

Decided August 13, 2010

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) of the 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. 

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

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

Chief Counsel

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
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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 inadmissible or deportable

from the United States if the alien—

. . . 

(C) has not been convicted of an offense under section 212(a)(2), 237(a)(2),

or 237(a)(3) . . . .

In her decision the Immigration Judge found that the respondent had not

met his burden of proof because he failed to establish that his California

misdemeanor theft conviction was not for a crime involving moral turpitude.

Relying on Matter of Almanza, 24 I&N Dec. 771 (BIA 2009), the
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Immigration Judge ruled that the respondent had thus failed to show that

he was not barred from cancellation of removal under section 240A(b)(1)(C)

of the Act. In Almanza, we held that an alien convicted of a crime involving

moral turpitude has been “convicted of an offense under” section 237(a)(2)

of the Act, 8 U.S.C. § 1227(a)(2) (2006), and is therefore ineligible for

cancellation of removal under section 240A(b)(1)(C), regardless of his status

as an arriving alien or his eligibility for a petty offense exception under

section 212(a)(2)(A)(ii)(II) of the Act. 

We have clarified our decision in Almanza in detail today in Matter

of Cortez, 25 I&N Dec. 301 (BIA 2010). Although not expressly articulated

in Almanza, implied in that decision and consistent with our related precedent

decisions regarding the section 240A(b)(1)(C) bar is the requirement that for

an offense to be “described under” section 237(a)(2)(A)(i) and render an alien

ineligible for cancellation of removal pursuant to section 240A(b)(1)(C), all

aspects of section 237(a)(2) relating to the criminal offense must be met.

In other words, the alien must have been convicted of an offense that qualifies

as a crime involving moral turpitude and the offense must be punishable

by a sentence to imprisonment for a year or longer. Conversely, an alien who

has been convicted of a crime involving moral turpitude for which the

maximum sentence possible would be less than 1 year, and which qualifies

under the petty offense exception, would not be convicted of an offense

“described under” either section 212(a)(2) or section 237(a)(2) of the Act and

would therefore not be barred from cancellation of removal under section

240A(b)(1)(C), if otherwise eligible. Matter of Cortez, 25 I&N Dec. at 307.

In light of this clarification of Almanza, we now apply our rationale to the facts

of this respondent’s case.

A. Offense Described Under Section 212(a)(2) of the Act

There is no dispute that the respondent’s 2001 California “shoplifting”

theft offense is a crime involving moral turpitude. See Flores Juarez

v. Mukasey, 530 F.3d 1020, 1022 (9th Cir. 2008) (stating that petty theft under

California law is a crime involving moral turpitude); see also United States

v. Esparza-Ponce, 193 F.3d 1133, 1136-37 (9th Cir. 1999). 

California law provides that the crime of theft is divided into two degrees,

the first of which is termed grand theft and the second is petty theft. See Cal.

Penal Code § 486 (West 2010). The offense of petty theft is ordinarily treated

as a misdemeanor. See People v. Terry, 54 Cal. Rptr.2d 769, 770-71 (Cal. Ct.

App. 1996); see also Cal. Penal Code §§ 484, 486, 488 (West 2010). Petty

theft is “punishable by fine not exceeding one thousand dollars ($1,000),

or by imprisonment in the county jail not exceeding six months, or both.”

Cal. Penal Code § 490 (West 2010). An offense punishable in this manner is,
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by definition, a misdemeanor. Cal. Penal Code § 17(a) (West 2010)

(“A felony is a crime which is punishable with death or by imprisonment in the

state prison. Every other crime or public offense is a misdemeanor except

those offenses that are classified as infractions.”). In California, “[e]xcept

in cases where a different punishment is prescribed by any law of this state,

every offense declared to be a misdemeanor is punishable by imprisonment

in the county jail not exceeding six months, or by fine not exceeding one

thousand dollars ($1,000), or by both.” Cal. Penal Code § 19 (West 2010).

The respondent’s record of conviction reflects that he was convicted under

section 484 of the California Penal Code for a misdemeanor theft offense.

The Immigration Judge found that because the respondent failed to show

that his California theft crime is not an offense described under section

212(a)(2) of the Act, he came within the 240A(b)(1)(C) bar to cancellation.

However, as the DHS has conceded on appeal, the California court’s treatment

of the respondent’s offense as a “misdemeanor” theft places the crime within

the “petty offense” exception in section 212(a)(2)(A)(ii)(II) of the Act. That

section provides that an alien who has committed only one crime is not

inadmissible under section 212(a)(2)(A)(i)(I) if (1) the maximum penalty

possible for the offense does not exceed 1 year of imprisonment, and (2) 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.

In this case, the respondent has committed only one crime, the maximum

penalty possible for the offense does not exceed 1 year of imprisonment, and

he was sentenced to 10 days’ confinement in the Los Angeles County jail for

that offense. Therefore, because his California theft conviction qualifies for

the “petty offense” exception in section 212(a)(2)(A)(ii)(II) of the Act, he has

not been convicted of an offense described under section 212(a)(2)(A)(i)(I).

See Matter of Garcia-Hernandez, 23 I&N Dec. 590 (BIA 2003). 

B. Offense Described Under Section 237(a)(2) of the Act 

As we clarified today in Matter of Cortez, 25 I&N Dec. 301, even

though the “petty offense” exception prevents the respondent from having

a conviction “described under” section 212(a)(2) of the Act, he must also

demonstrate that his California theft conviction is not for an offense “described

under” section 237(a)(2) of the Act. We find that the respondent has done so.

The provisions of section 237(a)(2) of the Act relating to crimes involving

moral turpitude require that the conviction also be for “a crime for which

a sentence of one year or longer may be imposed.” Section 237(a)(2)(A)(i)(II)

of the Act. As noted above, under California law, the respondent’s

misdemeanor theft offense is punishable by imprisonment in the county jail for

a period not exceeding 6 months, or by fine not exceeding $1,000 dollars,

or by both. See Cal. Penal Code § 19. Consequently, although the
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respondent’s misdemeanor theft conviction is for a crime involving moral

turpitude, it is not for an offense described under section 237(a)(2) of the Act,

because it is not a conviction for a crime for which a sentence of 1 year

or longer may be imposed. See section 237(a)(2)(A)(i)(II) of the Act; see also

Matter of Cortez, 25 I&N Dec. at 307. 

IV. CONCLUSION

Because the respondent has not been convicted of an offense described

under either section 212(a)(2) or 237(a)(2) of the Act, we conclude that

he is not statutorily precluded from establishing his eligibility for cancellation

of removal pursuant to section 240A(b)(1)(C). Furthermore, since the

Immigration Judge found that the respondent had otherwise met all of the

statutory requirements for cancellation of removal under section 240A(b)

of the Act, we will sustain his appeal and find him eligible for that relief.

We also find that he merits a favorable exercise of discretion and that

his application for cancellation of removal should therefore be granted.

Accordingly, the record will be remanded solely for the required security

checks.

ORDER: The appeal is sustained.

FURTHER ORDER: Pursuant to 8 C.F.R. § 1003.1(d)(6) (2010), the

record is remanded to the Immigration Judge for the purpose of allowing

the Department of Homeland Security to complete or update identity,

law enforcement, or security investigations or examinations, for further

proceedings, if necessary, and for the entry of an order, as provided

by 8 C.F.R. § 1003.47(h) (2010).