(B)

Commission of Only One CMT.  If the government shows, by a preponderance of the evidence, that a noncitizen has committed a second CMT, s/he will no longer be eligible for the petty offense exception to inadmissibility.[97]  Counsel should check the defendant’s entire criminal record to make sure that s/he has committed only one crime involving moral turpitude.  Commission of a second moral turpitude offense, even if the conviction was expunged, or charges were dismissed and there was no second conviction at all, will disqualify the defendant from eligibility for the Petty Offense Exception to inadmissibility for one CMT.[98]  On the other hand, previous non-turpitude convictions (e.g., driving under the influence, simple assault) will not disqualify the defendant from receiving the Petty Offense Exception.[99] 

 

A court finding that a defendant violated a condition of probation does not constitute a conviction, and therefore does not establish that the defendant committed a second CMT for purposes of disqualifying him or her from the petty offense exception to inadmissibility.  However, if the conduct underlying the violation of probation constitutes CMT conduct (i.e., the commission of a second CMT), the conduct could disqualify a noncitizen from the Petty Offense Exception. Counsel should examine the petition filed in the criminal court alleging a violation of probation, and any attached documents such as police reports, and determine the nature of the conduct resulting in the allegation that the defendant violated probation.

 

The question of whether a noncitizen has committed a second CMT is a conduct-based factor, and the noncitizen is free to contest it as a factual matter.  The client could testify in removal proceedings s/he did not commit the second CMT, or call other witnesses to prove this.

 

For example, in the context of determining whether a noncitizen on supervised release from immigration detention had violated the term of the release requiring that he not “commit any crimes, “ the Ninth Circuit has held that a plea of no contest in criminal proceedings is insufficient evidence to show that the noncitizen has committed a crime, since a nolo contendere plea is not an admission of guilt to the underlying crime.[100]  Applied in this context, counsel can argue that a no contest plea cannot be used to establish that a noncitizen has “committed” another CMT, because even though there is a conviction, a no contest plea gives no proof that the offense of conviction was “committed” by the defendant. Other evidence, however, could be used to prove the conduct.

 

Counsel can also argue (similarly to the single scheme concept applied to the two or more CMT ground of deportability[101]) that a second CMT committed as part of the same criminal act does not disqualify a person from the Petty Offense Exception.[102]

[97] Matter of SF, 7 I. & N. Dec. 495 (BIA 1957) (if the preponderance of the evidence shows the noncitizen committed a second CMT, the petty offense exception to inadmissibility for one CMT conviction or admission does not apply).

[98] In Matter of SR, 7 I. & N. Dec. 495 (BIA 1957), the BIA held that a noncitizen was disqualified from the Petty Offense Exception by reason of having committed a second crime of moral turpitude, even though the second conviction had been expunged and under applicable law at the time, the noncitizen therefore had only one CMT conviction.  The Board also held a person ineligible if the INS shows, by a preponderance of the evidence, that the person committed a second crime of moral turpitude, even if the person was never convicted.

[99] Matter of Garcia-Hernandez, 23 I. & N. Dec. 590 (BIA May 8, 2003) (commission of a second offense does not disqualify a noncitizen from the Petty Offense Exception to inadmissibility for one CMT conviction, under INA § 212(a)(2)(a)(ii)(ii), 8 U.S.C. § 1182(a)(2)(a)(ii)(ii) unless the second offense is also a CMT).  See also Reyes-Morales v. Gonzales, 435 F.3d 937 (8th Cir. Jan. 31, 2006) (since one of two convictions was not a crime of moral turpitude, and the other qualified for the petty offense exception to inadmissibility, respondent was not inadmissible for a CMT under INA § 212(a)(2), 8 U.S.C. § 1182(a)(2)); Cuadra v. Gonzales, 417 F.3d 947, 949 (8th Cir. 2005).

[100] United States v. Nguyen, 465 F.3d 1128 (9th Cir. Oct. 18, 2006) “[A] plea of nolo contendere ... is, first and foremost, not an admission of factual guilt. It merely allows the defendant so pleading to waive a trial and to authorize the court to treat him as if he were guilty. (citation omitted)). By entering a West plea a defendant [does] not admit the specific details about his conduct on the ... counts[to which] he pleaded guilty.  Carty v. Nelson, 426 F.3d 1064, 1068 (9th Cir.2005) (citing In re Alvernaz, 2 Cal.4th 924, 8 Cal.Rptr.2d 713, 830 P.2d 747); see also West, 91 Cal.Rptr. 385, 477 P.2d at 420 (explaining that by entering a plea agreement a defendant demonstrates that he ... is prepared to admit each of [the offense]'s elements” but not factual guilt). As a result, unless the record of the plea proceeding reflects that the defendant admitted to facts, a West plea, without more, does not establish the requisite factual predicate to support a sentence enhancement.” (internal quotation marks omitted)).  See also United States v. Vidal, 504 F.3d 1072, 1087-1088 (9th Cir. Oct. 10, 2007) (“The California Supreme Court subsequently characterized a People v. West plea as a plea of nolo contendere that does not establish factual guilt. See In re Alvernaz, 2 Cal.4th 924, 8 Cal.Rptr.2d 713, 830 P.2d 747, 752 (1992) (describing a People v. West plea as a ‘plea of nolo contendere, not admitting a factual basis for the plea’”).

[101] See § 5.14, infra.

[102] Matter of Medina-Lopez, 10 I. & N. Dec. 7 (BIA 1962) (the respondent in this case had been convicted, in Mexico, of petty theft and assault arising from a single mugging incident, the BIA determined that because these two offenses arose out of a “single scheme of misconduct” the convictions amounted to an equivalent to a single conviction for robbery, which if prosecuted under the District of Columbia Code, would have been punishable as a felony, and therefore did not qualify for the petty offense exception to inadmissibility). Thanks to Richard Breitman.

BIA

CRIMES OF MORAL TURPITUDE " PETTY OFFENSE EXCEPTION " MAXIMUM POSSIBLE SENTENCE CONTROLS
Matter of Ruiz-Lopez, 25 I&N Dec. 551 (BIA 2011) (maximum possible sentence for an offense, rather than the standard range of sentencing under a States sentencing guidelines, determines eligibility for the petty offense exception under INA 212(a)(2)(A)(ii)(II), 8 U.S.C. 1182(a)(2)(A)(ii)(II); but see United States v. Simmons, ___ F. 3d ___ (4th Cir. Aug 17, 2011)(where state sentence statute prohibits sentence in excess of one year, state conviction is not a felony under the federal definition even though statute defining the offense permits a greater sentence).

CRIMES OF MORAL TURPITUDE " PETTY OFFENSE EXCEPTION
Matter of Garcia, 25 I.& N. Dec. 332 (BIA 2010) (conviction for a single crime involving moral turpitude that qualifies as a petty offense is not for an offense referred to in section 212(a)(2), for purposes of triggering the stop-time rule even if it renders the alien removable under INA 237(a)(2)(A)(i), 8 U.S.C 1227 (a)(2)(A)(i).)

CRIMES OF MORAL TURPITUDE - PETTY OFFENSE EXCEPTION RELIEF - CANCELLATION OF REMOVAL FOR NON-LPRS - NONCITIZEN CONVICTED OF CMT IS INELIGIBLE REGARDLESS OF STATUS AS ARRIVING ALIEN
Matter of Gabriel Almanza-Arenas, 24 I. & N. Dec. 771 (BIA. Apr. 13, 2009) (noncitizen who has been convicted of a crime involving moral turpitude has been "convicted of an offense under" INA 237(a)(2), 8 U.S.C. 1227(a)(2)(2006), and is therefore ineligible for cancellation of removal under INA 240A(b)(1)(C), regardless of his status as an arriving alien or his eligibility for a petty offense exception under INA 212(a)(2)(A)(ii)(II), 8 U.S.C. 1182(a)(2)(A)(ii)(II)).

NOTE: This is a bad decision, contrary to earlier BIA precedent. Counsel should argue that this case applies only within the Ninth Circuit, as it relies upon a Ninth Circuit decision from 2004. Gonzalez-Gonzalez v. Ashcroft, 390 F.3d 649 (9th Cir. 2004) found that the plain language of 240A(b)(1)(C) required a noncitizen in inadmissibility proceedings be denied non-LPR cancellation because hed been convicted of a DV offense. This holding was based upon the "plain language" of the statute, thus no Chevron deference owed to the BIA cases to the contrary.

Under Matter of Garcia-Hernandez, such a person is not ineligible because the petty offense exception of 212(a) is incorporated into the moral character and specified offense bars of 240A(b)(1)(c) . This was recently reaffirmed in Matter of Gonzalez-Zoquiapan, 24 I&N Dec. 549, 554 (BIA 2008).

The BIA didnt address whether Almanza-Arenas had committed the CMT more than five years after his entry into the U.S. Arguably (see Moran v. Ashcroft, 395 F.3d 1089 (9th Cir. 2005)), a noncitizen with a CMT conviction is still ok if the offense falls within the petty offense exception AND was committed more than five years after entry to the U.S. INA 237(a)(2)(A)(i). Gonzalez v. Gonzalez didnt address the issue that a DV offense must be committed after admission to trigger removal. Counsel can argue that for purposes of 240A(b), the "admission" language is (somehow) deemed irrelevant in light of Gonzalez-Gonzalez, but the rest of the 237 language remains, including the five year requirement to trigger removal.

First Circuit

CRIMES OF MORAL TURPITUDE " PETTY OFFENSE EXCEPTION " CONVICTION BARS NON-LPR CANCELLATION OF REMOVAL EVEN THOUGH IT FITS WITHIN THE PETTY OFFENSE EXCEPTION TO MORAL TURPITUDE INADMISSIBILITY
Hernandez v. Holder, 783 F.3d 189 (4th Cir. Apr. 14, 2015) (deferring to Matter of Cortez Canales, 25 I. & N. Dec. 301, 306"08 (2010), to find noncitizen barred from non-LPR cancellation of removal under INA 240A(b)(1), 8 U.S.C. 1229b(b)(1), due to being removable under INA 237(a)(2)(A)(i), 8 U.S.C. 1227(a)(2)(A)(i), even though the noncitizens only crime fits within the petty offense exception to inadmissibility).

CRIMES OF MORAL TURPITUDE - PETTY OFFENSE EXCEPTION - MAXIMUM SENTENCE IS DETERMINED BY THE STATUTE, NOT THE GUIDELINES
Mejia-Rodriguez v. Holder, ___ F.3d ___, 2009 WL 456386 (1st Cir. Feb. 25, 2009) (for purposes of eligibility for the petty offense exception to inadmissibility, under INA 212(a)(2)(A) (ii)(II), 8 U.S.C. 1182(a)(2)(A)(ii)(II), the term "maximum penalty possible" is defined as the statutory range of imprisonment and not the federal Sentencing Guidelines range), following Mendez-Mendez v. Mukasey, 525 F.3d 828, 832-35 (9th Cir. 2008).

Second Circuit

CRIMES OF MORAL TURPITUDE " PETTY OFFENSE EXCEPTION " MAXIMUM POSSIBLE PENALTY
Vartelas v. Holder, 620 F.3d 108, 2010 WL 3515503 (2d Cir. Sept. 9, 2010) (the Petty Offense Exception requirement that the maximum penalty possible, under INA 212(a)(2)(A)(ii)(II) and U.S.C 1182 (a)(2)(A)(ii)(II), must be one year or less refers to the statutory maximum period of incarceration, rather than the top of the Guidelines range); accord Mejia-Rodriguez v. Holder, 558 F.3d 46, 48 (1st Cir. 2009); Mendez-Mendez v. Mukasey, 525 F.3d 828, 833 (9th Cir. 2008).

Fifth Circuit

SINGLE SCHEME
United States v. Hope, 545 F.3d 293 (5th Cir. Oct. 8, 2008) (defendant's possession of the same gun when arrested and on the previous day in a robbery, absent evidence that the possession was interrupted, did not constitute two separate violations of the felon-in-possession statute).

Eighth Circuit

PETTY OFFENSE EXCEPTION - FELONY - CHARGING PAPER IS NOT DISPOSITIVE AS TO WHETHER CALIFORNIA WOBBLER, ALSO KNOWN AS ALTERNATIVE FELONY-MISDEMEANOR, IS A FELONY, SINCE THE COURT AT SENTENCE MAY REDUCE IT TO A MISDEMEANOR FOR ALL PURPOSES
United States v. Viezcas-Soto, 562 F.3d 903 (8th Cir. Apr. 10, 2009) (in California, the information filed as a felony is not dispositive of the felony-misdemeanor inquiry - i.e. whether the maximum punishment is in excess of one year; a California "wobbler" becomes a felony or misdemeanor only after the court enters judgment imposing a punishment), citing Cal. Penal Code 17(b)(1); see United States v. Brown, 33 F.3d 1014, 1018 (8th Cir.1994); United States v. Gomez-Hernandez, 300 F.3d 974, 978 (8th Cir.2002); United States v. Robinson, 967 F.2d 287, 293 (9th Cir.1992)).

Ninth Circuit

CRIMES OF MORAL TURPITUDE " INADMISSIBILITY " PETTY OFFENSE EXCEPTION " NOT DISCRETIONARY
Cervantes v. Holder, ___ F.3d ___, 2014 WL 6463031 (9th Cir. Nov. 19, 2014) (the petty offense exception to inadmissibility, under INA 212(a)(2)(A)(ii), 8 U.S.C. 1182(a)(2)(A)(ii), based on a crime of moral turpitude, is mandatory and does not have any discretionary component); accord, Matter of Salvail, 17 I. & N. Dec. 19, 21 (BIA 1979) (explaining that the relief afforded by the petty offense exception is mandatory).

RELIEF - CANCELLATION FOR NON-LPRS - PETTY OFFENSE EXCEPTION
Vasquez-Hernandez v. Holder, 590 F.3d 1053,1055 n.2 (9th Cir. Jan. 6, 2010) (leaving open the question of whether an applicant for non-LPR cancellation of removal, who has a conviction that fits within the petty offense exception to inadmissibility, under INA 212(a)(2)(A)(ii)(II), is barred from cancellation of removal because of the conviction, where the "offense" of conviction is not described by any non-CMT grounds of deportation).

RELIEF - CANCELLATION FOR NON-LPRS - PETTY OFFENSE EXCEPTION
Vasquez-Hernandez v. Holder, 590 F.3d 1053 (9th Cir. Jan. 6, 2010) (California conviction of corporal injury of a spouse, in violation of Penal Code 273.5(a), which fit within the petty offense exception to inadmissibility, nonetheless disqualified respondent from eligibility for cancellation of removal for non-LPRs, under INA 240A(b), because the same offense could have been grounds for deportation as a crime of domestic violence, under INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i)).

PETTY OFFENSE EXCEPTION
United States v. Youssef, 547 F.3d 1090 (9th Cir. Nov. 5, 2008) (federal conviction for violation of 18 U.S.C. 1015(a), making a false statement in an immigration document, does not require the false statement to be material; even though prior conviction qualified for the petty offense exception to inadmissibility, and was therefore immaterial to admission, the noncitizen was required to disclose the fact of conviction).

CRIMES OF MORAL TURPITUDE - PETTY OFFENSE EXCEPTION - MAXIMUM SENTENCE REQUIREMENT - STATUTORY MAXIMUM NOT GUIDELINES MAXIMUM
Mendez-Mendez v. Mukasey, 525 F.3d 828 (9th Cir. May 8, 2008) (because statutory maximum term of imprisonment for bribery conviction was fifteen years, petty offense exception does not apply; plain language of INA 212(a)(2)(A)(ii)(II) indicates that "maximum penalty possible refers to statutory maximum, not the maximum guideline sentence to which noncitizen was exposed).

Tenth Circuit

RELIEF " NON-LPR CANCELLATION OF REMOVAL " PETTY OFFENSE EXCEPTION
Lucio-Rayos v. Sessions, 875 F.3d 573 (10th Cir. Nov. 14, 2017)(assumed moral turpitude conviction disqualified respondent from eligibility for discretionary cancellation of removal, and qualifying for the petty offense exception to moral turpitude inadmissibility would not change this result); following In re Cortez Canales, 25 I&N Dec. 301, 303-04 (BIA 2010); see also Mancilla-Delafuente v. Lynch, 804 F.3d 1262, 1265-66 (9th Cir. 2015); Hernandez v. Holder, 783 F.3d 189, 191-96 (4th Cir. 2015).

Other

CRIMINAL DEFENSE " SENTENCE " FEDERAL MISDEMEANOR STATUTES
http://xa.yimg.com/kq/groups/3815052/422498396/name/Federal_Misdemeanor_Statutes.pdf (Aug. 18. 2011) (comprehensive list of federal misdemeanors carrying maximum possible sentence of one year in custody).