I-751 Joint Petition Approved for Husband of Orange County Woman – No Interview

May 17th, 2013 No comments
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We just received an approval notice for a joint I-751 petition for our clients in Irvine. The case was approved without an interview.

Unlike the marriage-based green card process which requires an interview with an USCIS officer, the interview in the I-751 process is discretionary. If the USCIS officer is satisfied that enough evidence exists to prove good faith marriage, the officer can approve the case without an interview. In years past it seemed that USCIS would call for an interview in most cases, but I’ve noticed recently that USCIS has been approving our cases without interviews.

In this case, we included a great deal of evidence to show that the couple was living together and conducting themselves as a married couple. We represented the couple with the initial green card application, so we were familiar with their family history. We included over 150 pages of evidence with our packet. The client was excited to hear the news. He was happy that he would not have to attend an interview, because, although his marriage is legitimate and was entered into in good faith, any interview with USCIS is bound to cause stress even if the couple has nothing to hide.

If you are preparing to file the I-751 joint petition with USCIS, contact The Nunez Firm to schedule a consultation. We help countless couples each year with the I-751 process, many of whom we represented in the I-485 process and wanted us to represent them again.

245i Adjustment of Status Approved for Husband and Wife from Orange County

May 15th, 2013 No comments
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We just received approvals for a husband and wife from Santa Ana. The couple last entered the United States in 1995 and have lived here ever since. In early 2001, the husband’s employer filed a labor certification application for him before the sunset date of April 30, 2001. This made him eligible for INA 245i. The couple’s eldest daughter was born in the United States, and, after she turned 21 years old, the couple approached me about adjusting their status based on being the parent of a US citizen daughter.

We filed the I-130 visa petitions with the daughter as the petitioner and the parents as the beneficiaries. Along with the visa petition we filed the I-485 applications and all the other necessary forms. The interview as originally scheduled on a day that I was in court in Los Angeles, so we rescheduled for a later date.

The only issue that seemed potentially problematic was that the husband was in the United States prior to 1995. He was caught by INS and forced to return to Mexico. He was worried that this would count as a prior deportation which might complicate his case. I explained to the officer that the prior visit to the United States and my client’s subsequent return to Mexico was not a removal or deportation because my client never saw an immigration judge. Prior to IRRIRA, legacy INS did not have the expeditious removal authority it has today. Before IRRIRA, an alien could only be removed if he was ordered deported by an immigration judge. The unlawful presence bars of INA 212(a)(9) did not take effect until April 1, 1997.

In Matter of Rodarte, the BIA held that Congress did not intend for section 301(b) of IRRIRA to apply retroactively. A Department of Homeland Security Memo stated that INA 212(a)(9)(C) does not apply to re-entries that pre-date April 1997.

In the interview the issue did not even come up and the interview went smoothly. The client was very happy to become a lawful permanent resident after over 15 years of waiting. He and his wife were excited and plan to pursue naturalization in five years when they become eligible.

If you are considering the green card process, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will personally meet with you to help you better understand the options available to you.

Looking Back, What Was the Effect of the 1986 Immigration Amnesty Program?

May 14th, 2013 No comments
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In 1986, lawmakers decided the problem of illegal immigration had to be dealt with. More than 3 million people were living in the United States after crossing the border illegally or overstaying their visas.

A new law signed by President Ronald Reagan gave legal status and a path to citizenship to most of those unauthorized residents — helping many secure a slice of the American dream but also giving fuel to critics who sought to turn “amnesty” into a pejorative.

Less than 30 years later, the number of immigrants living in the country illegally is thought to have nearly quadrupled, and the freighted baggage of amnesty looms over new efforts to reform the nation’s immigration laws.

With four times as many people potentially eligible, today’s mass legalization would occur on a much larger scale. The specifics of the current proposal are different, the global economy is different, and the immigrants themselves are different, hailing from South Korea as well as Mexico and fanning out from traditional enclaves like Los Angeles to populate small towns across America.

Still, the reams of post-1986 studies offer an indication of what might happen if millions of immigrants receive legal status. And there is broad agreement on one thing: The flow of illegal immigration must somehow be stanched, so there is never a need for an amnesty again. In that respect, 1986 was an utter failure.

The Senate Judiciary Committee Begins the Editing Process for Comprehensive Immigration Reform

May 13th, 2013 No comments
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With the Gang of Eight’s immigration measure coming under the legislative magnifying glass this week, senators on a key committee are sharpening their red pencils in preparation to edit the 844-page bill.

The 18 members of the Senate Judiciary Committee have proposed 300 amendments to the legislation, ranging from protections for gay couples, to border-security fixes, to efforts to dismantle the bill’s central goal of creating a path to citizenship for undocumented immigrants.

Friends and foes of the reform effort will push their proposals starting Thursday, when the committee begins marking up the legislation. While observers do not expect that the bill will undergo dramatic changes in the committee process — with bipartisan proponents of reform on the panel likely to stick together to resist substantial changes to their core legislation —  the high-profile debate is sure to elevate the often-dull “markup” process to must-see TV for anyone with a dog in the immigration fight.

While Republicans proposed the lion’s share of the changes — 194 in total from the GOP side — some Democratic amendments will be controversial as well.

As expected, Democratic Sen. Patrick Leahy, the panel’s chairman, proposed changes that would make the foreign-born same-sex partners of U.S. citizens eligible to apply for green cards. Many Republicans — including key Gang of Eight author Sen. Marco Rubio — have resisted the change, which some suggest would torpedo the entire bill by angering religious organizations and other social conservatives who have otherwise expressed support for the reform legislation.

Case Brief: Ruiz-Vidal v. Gonzales (9th Circuit)

May 12th, 2013 No comments
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RUIZ-VIDAL v. Gonzales

Issue Presented

Whether the Department of Homeland Security has met its burden of proving that the petitioner is removable from the United States as an alien convicted of a law relating to a controlled substance?

Facts

Jose Ruiz-Vidal is a 49 year-old Mexican national who legally immigrated to the United States in August 1976. On October 26, 1998, Ruiz-Vidal pleaded nolo contendere in California Superior Court to one count of criminal possession of methamphetamine, in violation of Cal. Health & Safety Code § 11377(a) (the “1998 conviction”). Thereafter, the government sought to have Ruiz-Vidal removed from the United States on the basis of this conviction.

On February 10, 2003, Ruiz-Vidal was charged in California Superior Court with one count of violating Cal. Health & Safety Code § 11378 (possession of a controlled substance for purpose of sale) and one count of violating Cal. Health & Safety Code § 11379(a) (transportation of a controlled substance).

The Department of Homeland Security (“DHS”) commenced removal proceedings against Ruiz-Vidal on December 16, 2003 with the issuance of a Notice to Appear, alleging that he was subject to removal under 8 U.S.C. § 1227(a)(2)(A)(iii). That section renders removable an alien convicted of an aggravated felony as defined in 8 U.S.C.§ 1101(a)(43)(B), an offense relating to the illicit trafficking in a controlled substance, as described in Section 102 of the Controlled Substances Act (“CSA”), 21 U.S.C. § 802.

On March 11, 2004. The IJ determined that the convictions involved methamphetamine. Accordingly, the IJ ordered that Ruiz-Vidal be removed to Mexico.

Ruiz-Vidal appealed the decision of the IJ to the Board of Immigration Appeals (“BIA” or “Board”). On July 22, 2004, the BIA affirmed without opinion the IJ’s order that Ruiz-Vidal be removed from the United States to Mexico. Thereafter, Ruiz-Vidal filed a “Motion to Reconsider” with the BIA. Ruiz-Vidal filed a timely petition for review to this court.

Rule

The government must prove by “clear, unequivocal, and convincing evidence that the facts alleged as grounds of [removability] are true. [The underlying controlled substance (conviction) under Cal. Health & Safety Code § 11377(a)]

Analysis

The government must prove by “clear, unequivocal, and convincing evidence that the facts alleged as grounds of [removability] are true.” Gameros-Hernandez v. INS, 883
F.2d 839, 841 (9th Cir. 1989). In this case, Ruiz-Vidal was charged with removability on the basis of his conviction of a controlled substance offense. 8 U.S.C. § 1227(a)(2)(B)(i).

The plain language of the statute requires the government to prove that the substance underlying an alien’s state law conviction for possession is one that is covered by Section
102 of the CSA.

Thus, in order to prove removability, the court considered whether Ruiz-Vidal’s 2003 conviction may serve as the predicate offense for his removal as an alien convicted of a law relating to a controlled substance? The court quickly answered no because Ruiz-Vidal previously was found removable on the basis of the conviction, but was granted cancellation of removal. 8 U.S.C. § 1229b. Thus, the government may not use the conviction again as a predicate removal offense.

Next, the court looked at the charging documents in conjunction with the plea agreement, the transcript of a plea proceeding, or the judgment to determine whether the defendant pled guilty to the elements of the generic crime?

In undertaking an analysis of the record of conviction, the court “may consider the charging documents in conjunction with the plea agreement, the transcript of a plea proceeding, or the judgment to determine whether the defendant pled guilty to the elements of the generic crime.” United States v. Corona-Sanchez, 291 F.3d 1201, 1211 (9th Cir. 2002). In reviewing the administrative record in this case, the court looked to the only two documents relating to Ruiz-Vidal’s 2003 conviction. The first, charged Ruiz-Vidal with two crimes: (1) a violation of Cal. Health & Safety Code § 11378 (possession for purpose of sale); and (2) a violation of Cal. Health & Safety Code § 11379(a) (unlawful transportation). In both counts, the charging document lists the controlled substance underlying the conviction as methamphetamine. The other document in the record is an abstract of judgment which states that Ruiz-Vidal pleaded nolo contendere to a single charge of violating Cal. Health & Safety Code § 11377(a). The crime is described as “Possess Controlled Substance.”

The court concluded that there is simply no way for the court to connect the references to methamphetamine in the charging document with the conviction under Cal. Health & Safety Code § 11377(a) by relying on an analogous case; Martinez-Perez v. Gonzales, 417 F.3d 1022 (9th Cir. 2005). In Martinez-Perez, only three documents were before the court: (1) an information charging the defendant with second-degree robbery in violation of § 211 of the California Penal Code; (2) a minute order memorializing a probation violation hearing; and (3) an abstract of judgment documenting the defendant’s plea to a violation of § 487(c) of the California Penal Code. Id. at 1028-29. The court held that based upon those documents, it was not possible to determine whether the defendant had pleaded guilty to all elements of a theft offense, as generically defined. The court reasoned that because the defendant had pleaded guilty to an offense different from the one charged in the information, “the information . . . is not the sort of ‘generically limited charging document’ indicating that the plea necessarily rested on the fact identifying the burglary as a generic theft offense.”

Here, similar to Martinez-Perez, Ruiz-Vidal did not plead guilty to an offense that was charged in the information. Here also, the administrative record contains no plea agreement, plea colloquy, or any other document that would reveal the factual basis for Ruiz-Vidal’s 2003 conviction. Applying Martinez-Perez, the court concluded “there is simply no way for the court to connect the references to methamphetamine in the charging document with the conviction under Cal. Health & Safety Code§ 11377(a).”

Thus, the court was only left only to speculate as to the nature of the substance. Stating that “speculation is not enough, the court, therefore, conclude that DHS has failed to establish unequivocally that the particular substance which Ruiz-Vidal was convicted of possessing in 2003 is a controlled substance as defined in section 102 of the Controlled Substances Act.

Holding

Department of Homeland Security failed to establish unequivocally that the particular substance, which Ruiz-Vidal was convicted of possessing in 2003, is a controlled substance as defined in section 102 of the Controlled Substances Act.

Conclusion

Thus, because the judicially noticeable documents in this case fail to support the BIA’s determination that Ruiz-Vidal is removable as an alien convicted of a law related to a controlled substances offense, the court reversed the order of removal.

Case Brief: In Re Campos-Torres (BIA 1993)

May 6th, 2013 No comments
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In re Ignacio CAMPOS-TORRES, Respondent

Issue Presented

The issue in this case is whether, under the rule stated in section 240A(d)(1) of the Act, an offense that is not “referred to in section 212(a)(2)” of the Act, 8 U.S.C. § 1182(a)(2) (1994 & Supp. II 1996), will stop the further accrual of continuous residence in the United States, which is required to establish eligibility for cancellation of removal.

FACTS

The respondent, a native and citizen of Mexico, was admitted to the United States as a temporary resident on May 4, 1988, and adjusted his status to that of a lawful permanent resident on December 13, 1990. It is uncontested that on September 23, 1993, the respondent was convicted in the Circuit Court of Cook County, Illinois, of a single offense of unlawful use of a weapon, in violation of chapter 38, section 24-1(a)(7) of the Illinois Compiled Statutes Annotated. The respondent was sentenced to 18 months’ probation. On June 25, 1997, the Immigration and Naturalization Service issued and served a Notice to Appear (Form I-862), commencing these removal proceedings and charging the respondent with removability under section 237(a)(2)(C) of the Act.

Rule

A firearms offense that renders an alien removable under section 237(a)(2)(C) of the Act, 8 U.S.C. § 1227(a)(2)(C) (Supp. II 1996), is not one “referred to in section 212(a)(2)” and thus does not stop the further accrual of continuous residence or continuous physical presence for purposes of establishing eligibility for cancellation of removal.

Analysis

The plain language of section 240A(d)(1) states that, as a prerequisite, an offense must be “referred to in section 212(a)(2)” of the Act in order to stop accrual of time. The phrase “referred to in section 212(a)(2),” the court stated, “could not be more clear, and we will apply its plain meaning.” The court reasoned that they are unaware of any legislative history that would overcome the strong presumption that these words mean what they say. The court would not interpret the statue the way the Service wanted, which was any offense in sections 212(a)(2), 237(a)(2), or 237(a)(4) would operate to cut off time. Furthermore, the court reasoned that its task “is not to improve on the statute or to question the wisdom of it, but rather to interpret the language that was enacted as law.”

Another important rule of statutory construction the court used to determine the issue was the “plain meaning” of the statute. Thus, in construing the language of section 240A(d)(1) of the Act, the court must also consider the language in section 240A as a whole. The court further noted that Congress referred to grounds of inadmissibility and deportability several times throughout section 240A of the Act. For instance, section 240A(b)(1)(C) refers to sections 212(a)(2), 237(a)(2), and 237(a)(3) of the Act, stating that nonpermanent residents who have been convicted of an offense under any of these provisions are ineligible for cancellation of removal. Similarly, in delineating special rules of eligibility for battered spouses or children, section 240A(b)(2)(D) specifically states that these rules apply only to aliens who are not inadmissible under sections 212(a)(2) or (3), or deportable under section 237(a)(1)(G) or sections 237(a)(2), (3), or (4) of the Act. Thus, under sections 240A(b)(2)(D) and 240A(c)(4), any alien who is deportable under section 237(a)(4) of the Act is categorically barred from a grant of cancellation of removal. Consequently, the inclusion of this ground of deportability within section 240A(d)(1) is merely an additional reference.

Simply put, the court said, “ it would be irrelevant whether a charge of deportability under section 237(a)(4) terminates an alien’s period of continuous residence or physical presence because deportability under that charge automatically renders an alien statutorily ineligible for cancellation of removal pursuant to sections 240A(b)(2)(D) or (c)(4) of the Act.” Thus, ignoring the duplicative reference to section 237(a)(4) in section 240A(d)(1) has no impact on section 240A as a whole, because the presence or absence of that language in section 240A(d)(1) has no effect on eligibility for cancellation of removal.

Holding

Accordingly, the court found that because the respondent’s firearms offense, which rendered him deportable under section 237(a)(2)(C) of the Act, is not referred to in section 212(a)(2) of the Act, it did not “stop time” under section 240A(d)(1).

The respondent’s period of continuous residence began when he was admitted as a temporary resident on May 4, 1988.  Therefore, the respondent has satisfied the continuous residence requirement of section 240A(a)(2).

Conclusion

The court sustained the respondent’s appeal and remand the record to the Immigration Judge for a hearing on the merits of the respondent’s application for cancellation of removal.

Case Brief: In Re Greg Fabian Azurin (BIA 2005)

May 1st, 2013 No comments
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In re Greg Fabian AZURIN, Respondent

Issue Presented

Whether an alien who, prior to the 1996 amendments made to former section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1994), pled guilty to an offense that rendered him inadmissible as an alien convicted of a crime involving moral turpitude, as well as removable based on his conviction for an aggravated felony and a firearms offense, may seek a waiver of his inadmissibility under section 212(c) in conjunction with an application for adjustment of status, despite regulatory changes relating to the availability of section 212(c)?

Facts

The respondent was convicted on March 12, 1990, of shooting at an occupied motor vehicle in violation of California law. On the basis of this conviction, he was charged in 1998 with removability as an alien convicted of an aggravated felony under section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. §1227(a)(2)(A)(iii) (Supp. IV 1998). Subsequently, a charge was lodged that he was also removable under section 237(a)(2)(C) because his conviction was for a firearms offense as well. Neither of these grounds of removability has a corresponding ground of inadmissibility. The respondent is the beneficiary of an approved visa petition filed by his United States citizen spouse. In his decision, the Immigration Judge implied that the respondent was ineligible for a waiver under former section 212(c) of the Act because his conviction was for an offense that rendered him removable on grounds that lacked a comparable ground of inadmissibility.

Rule

An alien who, prior to the 1996 amendments made to former section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1994), pled guilty to an offense that rendered him inadmissible as an alien convicted of a crime involving moral turpitude, as well as removable based on his conviction for an aggravated felony and a firearms offense, may seek a waiver of his inadmissibility under section 212(c) in conjunction with an application for adjustment of status, despite regulatory changes relating to the availability of section 212(c) relief. Matter of Gabryelsky, 20 I&N Dec. 750 (BIA 1993)

Analysis

A conviction for an offense that rendered the alien deportable did not preclude a showing of admissibility for purposes of an application for adjustment of status where there was no corresponding ground of inadmissibility for the crime in the statute. Matter of Rainford, 20 I&N Dec. 598 (BIA 1992), Therefore, the court concluded that respondent does not need section 212(c) relief to waive either the firearms or aggravated felony charges in order to adjust his status. Nevertheless, because section 212(c) requires a waiver in conjunction with the adjustment application, respondent would need to seek a waiver as his offense also constitutes a crime involving moral turpitude, which would render him inadmissible.

Note: As an initial matter the court ruled that because SCOTUS in  INS v. St. Cyr, 533 U.S. 289 (2001),  determined that restrictions on the availability of section 212(c) relief do not apply retroactively to aliens who pled guilty prior to the April 24, 1996, effective date of the Antiterrorism and Effective Death Penalty Act of 1996, and because the respondent pled guilty and was convicted prior to the enactment of that statute, the respondent is not ineligible for a waiver as a result of the AEDPA amendments.

Furthermore, the court held that respondent is ineligible for section 212(c) relief on the basis of the newly promulgated regulations addressing such relief. See: Executive Office for Immigration Review; Section 212(c) Relief for Aliens With Certain Criminal Convictions Before April 1, 1997, 69 Fed. Reg. 57,826 (Sept. 28, 2004) (codified at 8 C.F.R. § 1212.3) (effective Oct. 28, 2004). The purpose of the new regulation, the court stated, “appears simply to be to codify the holdings in Matter of Hernandez-Casillas, 20 I&N Dec. 262 (A.G. 1991; BIA 1990), and Matter of Granados, 16 I&N Dec. 726 (BIA 1979).

Section 212(c) relief is not available to waive a ground of deportability or removability that has no analogous ground of inadmissibility in section 212(a) of the Act. Matter of Gabryelsky, 20 I&N Dec. 750, 753-54 (BIA 1993). Thus, Matter of Gabryelsky is entirely consistent with the case law underpinning the new regulation.

Consequently, the court held that the new regulation does not make the respondent ineligible for section 212(c) relief to the extent that he seeks a waiver, in conjunction with an application for adjustment of status, for an offense that would render him inadmissible under section 212(a).

Lastly, the court rejected the Immigration Judge’s suggestion that as a result of other regulatory changes, the respondent can no longer rely on Matter of Gabryelsky, in applying for adjustment of status in conjunction with a waiver of inadmissibility under former section 212(c) of the Act because the regulatory change(s) does not preclude the respondent from combining the section 212(c) waiver with an adjustment application. The court stated the “regulation clearly indicates that the various waivers of inadmissibility are intended to accompany an adjustment application.”

Accordingly, the court held that Matter of Gabryelsky, had not been overruled as a result of the alteration of 8 C.F.R. § 245.1(f), and reaffirm its decision in that case.

Holding

The court held that the new regulation does not make the respondent ineligible for section 212(c) relief to the extent that he seeks a waiver, in conjunction with an application for adjustment of status, for an offense that would render him inadmissible under section 212(a).

Conclusion

The respondent is permitted to submit his section 212(c) waiver request with his application for adjustment of status.

H-1B Specialty Occupation Nonimmigrant Visa Approved for Employee in Southern California

April 30th, 2013 No comments
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We recently received an approval for one of our clients’ software engineers in southern California. The employee has a Master’s Degree from Cal State Long Beach, therefore, she was eligible to process her H-1B under the Master’s Cap. The case was processed under the premium processing provisions.

The employee was already working for our client under Temporary Protected Status; therefore, we were changing her status from TPS to H-1B. The employer is not considered H-1B dependent, because fewer than 15% of the companies employees are H-1Bs.

The employee will help develop, create and modify the company’s software, use AI techniques for statistical data analysis, design application architecture and infrastructure using business process management, and perform coding and unit test authoring. Additionally, she will assist in authoring and reviewing technical product documentation and technical product training materials.

USCIS was convinced that the position required a high level of sophistication in a highly complex and technical area of software engineering that could only be performed by an individual with a minimum of a bachelor’s degree in computer science or a related engineering area.

The employee has a bachelor of science degree with a major in computer and communication engineering for a foreign university. Additionally, she has a master of science degree in electrical engineering from Cal State Long Beach. She began working for the employer in February 2012.

The client and employee were very happy with the result, and the look forward to the next three years of employment under H-1B status. This year the number of H-1B visas was reached within the first few days; therefore, a lottery was instituted to determine which petition would be selected. If you are considering an employment-based visa, contact The Nunez Firm to discuss the options available to you. Managing attorney Jay Nunez will personally meet with you to help you better understand the various paths, pros and cons.

Green Card Based on Marriage to US Citizen Approved for Orange County Client

April 26th, 2013 No comments
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We recently received an approval for a marriage-based green card. Our client married a US citizen several years ago. He entered legally when he was a teenager, and, although he has been eligible to adjust status based on his marriage to a US citizen, the couple wanted to wait until they had the financial resources to hire an attorney.

When we filed the visa petition and adjustment of status application, we included documentation to prove good faith marriage including apartment leases, car insurance, health insurance, photos with family, wedding photos, car registration, utility bills, statements from friends, etc.

The interview went smoothly. The client had been convicted of a DUI, so we brought the court records to show that the case had been resolved and that the client was eligible for lawful permanent residency. Because the couple’s marriage was more than two years old when we filed, they will not need to deal with the I-751 process. His green card will be valid for ten years. He will be eligible to naturalize as a US citizen within three years.

If you are considering the adjustment of status process, contact The Nunez Firm to schedule a free consultation. Managing attorney Jay Nunez will personally meet with you to help you better understand the process and whether it is right for you.

Case Brief: In Re Deanda-Romo (BIA 2003)

April 23rd, 2013 No comments
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In re Jose Abraham DEANDA-ROMO, Respondent

Issue Presented

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.

 Facts

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 he 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 that he serves 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.

Rule

A firearms offense that renders an alien removable under section 237(a)(2)(C) of the Act, 8 U.S.C. § 1227(a)(2)(C) (Supp. II 1996), is not one “referred to in section 212(a)(2)” and thus does not stop the further accrual of continuous residence or continuous physical presence for purposes of establishing eligibility for cancellation of removal.

  Analysis

 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. 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 the court was therefore, whether the respondent 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. Therefore, the court held that the subsequent commission of a crime involving moral turpitude had no effect on respondent’s admissibility during the 7-year period during which he was required to establish continuous residence. Therefore, the court concluded that the respondent is not ineligible to apply for cancellation of removal under section 240A(a) by virtue of his convictions.

Holding

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.

 Conclusion

The court concluded that the respondent is not ineligible to apply for cancellation of removal under section 240A(a) by virtue of his convictions.

 

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