In Matter of Garcia, 25 I&N Dec. 332(BIA 2010), the Board of Immigration Appeals (BIA) has clarified the interplay between the petty offense exemption and other sections in the Immigration and Nationality Act (INA). This time the conflict surrounds the Stop-Time Rule set out in Section 240A(d)(1) of the INA, which provides that any period of physical presence in the United States shall end upon the commission of an offense referred to in section 212(a)(2) of the INA. Mr. Garcia had committed the offense of misdemeanor assault and battery, domestic, in violation of Oklahoma law. The maximum punishment for such a crime is 1 year, and Mr. Garcia was sentenced to 3 years of probation.
The IJ concluded that this was, indeed, a crime involving moral turpitude that had been committed with 5 years of entry and was thus “referred to in section 212(a)(2)” of the INA resulting in Mr. Garcia’s physical presence being stopped short of the seven years needed for Cancellation of Removal for Certain Lawful Permanent Residents.
No so says the BIA. Why? Because the offense is a petty offense as set out in 212(a)(2)(i) in that the maximum penalty is a year or less, and the respondent was not sentenced to a term of imprisonment exceeding six months. A petty offense, having been carved out of the category of crimes involving moral turpitude in 212(a)(2), could not be “referred to” in 212(a)(2) and therefore did not stop the respondent’s ongoing physical presence needed for cancellation.
The BIA distinguished Matter of Cortez, 25 I&N Dec. 301 (BIA 2010) because the crime in question there, while not a petty offense, was described in 237(a)(2) which disqualified Cortez for non-LPR Cancellation. Such a conviction is no barrier to LPR Cancellation. The Cortez case had nothing to do with the Stop-Time Rule but only concerned itself with whether a crime described in 237(a)(2) had been committed. Here the issue concerned the Stop-Time Rule and the commission of a crime referred to in 212(a)(2). Had Mr. Cortez been an LPR, he might have qualified for LPR Cancellation under Garcia.
Statutes must be read carefully to make sure respondents who commit crimes have physical presence, and these two cases should be understood in order to make that determination.
