&nbsp Counsel can argue that multiple CMT convictions arising out of a single criminal act may still fall within the petty offense exception to inadmissibility:



&nbsp Unlike the multiple CMT ground of deportation, INA 237(a)(2)(A)(ii), there is no explicit exception for when a noncitizens CMTs arise "out of a single scheme of criminal misconduct." Counsel can argue, however, that a second CMT committed as part of the same criminal act does not disqualify a person from the Petty Offense Exception. Matter of Medina-Lopez, 10 I. & N. Dec. 7 (BIA 1962)



&nbsp In criminal law, "defendants may be charged with and convicted of multiple offenses based on a single act or indivisible course of conduct." People v. Pearson, 42 Cal.3d 351, 228 Cal.Rptr. 509 (1986).Where the charges arising from a single act or an indivisible course of conduct involve different offenses entailing different elements of proof, a defendant may be properly convicted of both. People v. Rocha, 80 Cal.App.3d 972, 975, 146 Cal.Rptr. 81 (1978).On the other hand, "multiple convictions may not be based on necessarily included offenses." People v. Pearson, supra, 42 Cal.3d at 355.In some cases, the multiple convictions are so closely related that only a single sentence may be imposed. United States v. Palafox, 764 F.2d 558 (9th Cir. 1985).



&nbsp A defendant can, for example, be convicted of possession of a sawed-off shotgun and possession of a firearm by an ex-felon, in part because each of the statutes of conviction advance a different legislative interest, which would be frustrated if the accusatory pleadings test prohibited conviction of both. People v. Scheidt, 231 Cal.App.3d 162, 170-171, 282 Cal.Rptr. 228 (1991). In other cases, as with theft and burglary with intent to commit theft, the charges arise out of two components of a single criminal undertaking. Prince v. United States, 352 U.S. 322 (1957).



&nbsp The petty offense exception to inadmissibility "shall not apply to an alien who has committed only one crime." The term "commit" means "to perform as an act." BLACKS LAW DICTIONARY 273 (6th ed. 1990). Thus counsel can argue that where a commission of a single act arises in multiple criminal convictions, the noncitizen should not be disqualified from the petty offense exception to inadmissibility.



&nbsp The BIA would appear to agree. In Matter of Medina-Lopez, 10 I. & N. Dec. 7 (BIA 1962), the Board found that a noncitizen convicted in Mexico with robbery, and assault with intent to commit robbery, was eligible for the petty offense exception to inadmissibility. Counsel argued that, for purposes of the petty offense exception, the two convictions arose out of the same act, and the BIA should only consider the most serious aspect of that single act. The Board found that:



&nbsp The court chose to punish the respondent for two separate offenses - robo, the taking of property, and lesiones, an assault. However, this record clearly establishes that the taking of property and the assault arose out of one incident. The assault was for the purpose of taking property from the person of another. It appears to us that the respondents convictions arising as they do out of a single scheme of conduct amount to what in the District of Columbia Code is described as robbery . . . .



&nbsp Id. at 9 (emphasis added). Although the issue in Medina-Lopez concerned an interpretation of foreign law under United States standards, the same reasoning should apply to domestic convictions as well.



&nbsp Although a prosecutor in one state may decide to charge a person who commits the act of shoplifting with theft in one case, a different prosecutor in the same or another state could chose to charge the same act as both theft and burglary with intent to commit theft. Regardless of how the act was charged, only a single act that was committed.



&nbsp Thus, to interpret the petty offense exception to depend upon how the prosecution chose to charge the offense would be to allow the vagaries of state law to control, contrary to the interest in national uniformity in the application of federal immigration law. Cf. Gerbier v. Holmes, 280 F.3d 297, 312 (3d Cir.2002) (allowing the question of whether first time simple possession of a controlled substance is an aggravated felony to depend upon differing laws of the states would go against the interests of national uniformity in the application of federal immigration law).