Matter of Garcia-Hernandez, 23 I. & N. Dec. 590, 593 (BIA 2003). Accord, Matter of Urpi-Sancho, 13 I. & N. Dec. 641 (BIA 1970)(CMT conviction falling within petty offense exception does not render the noncitizen ineligible for voluntary departure since s/he was not thereby barred from showing good moral character); Matter of M, 7 I. & N. Dec. 147 (BIA 1956)(CMT conviction falling within petty offense exception does not render the noncitizen ineligible for suspension of deportation since s/he was not thereby barred from showing good moral character)

Matter of Garcia Hernandez, 23 I. & N. Dec. 590, Int. Dec. 3490, 2003 WL 21043271 (BIA May 8, 2003) (conviction of a crime involving moral turpitude that falls within the "petty offense" exception does not disqualify a respondent from cancellation of removal under INA § 240A(b)(1)(B), 8 U.S.C. § 1229b(b)(1)(B) because commission of a petty offense does not bar the offender from establishing good moral character under INA § 101(f)(3), 8 U.S.C. § 1101(f)(3) (Supp. IV 1998)).

Ikenokwalu-White v. INS, 316 F.3d 798 (8th Cir. January 21, 2003)(immigration courts may consider Kansas misdemeanor convictions for theft, battery, and welfare fraud, even though they had been expunged pursuant to a state rehabilitative statute, in making a good moral character determination).

Beltran-Tirado v. INS, 213 F.3d 1179 (9th Cir. 2000). The circumstances, however, can be weighed as a discretionary factor. This applies wherever good moral character is required, such as cancellation for non-LPRs, registry, voluntary departure, and naturalization.

United States v. Gonzalez, 429 F.3d 1252 (9th Cir. Dec. 1, 2005) (failure to inform defendant of alleged right to discretionary relief before he waived appeal of deportation orders did not render waiver unintelligent; application of bar on discretionary relief for aliens convicted of aggravated felony was not impermissibly retroactive as applied to alien who did not have settled expectation of discretionary relief at time of guilty plea to aggravated felony).

United States v. Morales-Chaires, 430 F.3d 1124 (10th Cir. Dec. 7, 2005) (failure to grant illegal reentry defendant downward departure for which he would have been eligible in federal district where fast-track program was available was not unreasonable, given his extensive criminal history; statutory mandate to avoid unwarranted sentencing disparities was merely one of many factors court had to consider).

United States v. Chavez-Alonso, ___ F.3d ___, 2005 WL 3367056 (10th Cir. Dec.12, 2005) (conviction of illegal reentry after aggravated felony conviction affirmed, despite argument underlying deportation order was issued as a result of fundamentally unfair proceeding since immigration judge failed to inform the noncitizen that he was eligible to apply for relief from deportation, since his waiver of appeal from deportation order constituted a failure to exhaust administrative remedies).

United States v. El Shami, ___ F.3d ___, 2005 WL 3527283 (4th Cir. Dec. 27, 2005) (failure to give noncitizen notice of deportation proceeding violated due process and deprived him of right to seek administrative review, and prejudiced him given reasonable probability he would have qualified for 212(c) relief, so deportation order was unlawful and he could not be convicted of illegal reentry after deportation).

United States v. Cruz, __ F.3d __ (9th Cir. Sept. 16, 2005) (United States v. Booker, 125 S.Ct. 738 (2005) presents a new procedural rule, and is not retroactive to cases on collateral review).

United States v. Kortgaard, ___ F.3d ___ (9th Cir. Sept. 21, 2005)(upward departures based on recidivism under USSG 4A1.3 involve factual findings beyond the fact of a prior conviction, and therefore require remand for resentencing in light of United States v. Booker (2005) 125 S.Ct. 738).