Recently the Board of Immigration Appeals (BIA) handed down its decision in Matter of Cortez, 25 I&N Dec. 301 (BIA 2010). In it, the BIA ruled that Mr. Cortez did not qualify for Cancellation of Removal (COR) because he had been convicted of misdemeanor welfare fraud punishable by not more than 12 months in jail. The BIA acknowledged that the crime was a misdemeanor and that under INA § 212(a)(2)(ii)(II), it would not be a crime involving moral turpitude (CIMT) because it fell within the petty offense exception because the maximum penalty did not exceed a year and the term of imprisonment was not in excess of six months. As such, because it was a petty offense under INA § 212(a)(2), Mr. Cortez is still eligible for COR. This was, in fact, the exact holding by the BIA in Matter of Garcia-Hernandez, 23 I&N Dec. 590 (BIA 2003).
It seems as if Mr. Cortez is in the clear. His offense is clearly a petty offense. Not so, says the BIA. Not only does Mr. Cortez have to clear the 212(a)(2) hurdle, he must also clear the 237(a)(2) hurdle. Under INA § 240A((b)(1)(C) one does not qualify for COR if one has been convicted of an offense under section 212(a)(2) OR 237(a)(2). The latter section provides that an alien convicted of a CIMT within five years of admission and has been convicted of a crime for which a sentence of one year or longer may be imposed is deportable.
Again, at first glance, Mr. Cortez still qualifies because his conviction did not occur within five years of admission. That, however, doesn’t make any difference to the BIA. They conclude that “only the language specifically pertaining to the criminal offense, such as the offense itself and the sentence imposed or potentially imposed, should be considered” The date the offense occurred does not describe the offense and is not relevant to the proceedings. As a result, Mr. Cortez does not qualify for COR because even though his offense is a petty offense, he has been convicted of an offense “described under” 237(a)(2) because the crime is punishable by a maximum sentence of a year or more.
This case raises all sorts of problems. First, if the BIA took into consideration of the petty offense exemption under 212(a)(2), why would it not take into consideration the time limitation under 237(a)(2). Both of those limiters are set out in each section. How can the BIA ignore one but dramatically emphasize the other. Does this create a violation of the Due Process or Equal Protection Clauses? Should not the statute be read and interpreted as a whole? It stands to reason that if Congress wanted to exempt petty offenders under 212(a)(2), it would also excuse those who have lived in the United States over certain period of time. The BIA cannot change or ignore the law passed by Congress. After all if you can’t remove an alien for CIMT’s committed after five years of residence, why shouldn’t the alien qualify for COR?
The case will most likely be appealed but it appears, for the time being, that any CIMT punishable by a maximum of one year, will disqualify an otherwise eligible applicant for COR even if the offense is a petty offense.
Jack Richbourg is an attorney practicing immigration law. He spends most of his time representing individual in immigration court or in appeals from the immigration court. You can reach him at 901-682-6455. Do not rely on the contents of this blog as legal advice. Advice in a particular case depends upon its own unique set of facts. Always have a personal consultation with a licensed attorney before taking or refraining from taking any action.
This guy is a welfare fraudster. Nuff said.