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CA9 Says Fleeing from Police Under California Vehicle Code §2800.2 Is Not Categorically a CIMT

The Ninth Circuit Court of Appeals granted the petition for review of the Board of Immigration Appeals’ decision and held that the petitioner’s conviction for fleeing from a police officer under California Vehicle Code §2800.2 was not categorically a crime involving moral turpitude (CIMT), because the conduct criminalized does not necessarily create the risk of harm that characterizes a CIMT. The court concluded by ruling that the petitioner was not statutorily ineligible for cancellation of removal.

Crime of Moral turpitude found

Assault with a deadly weapon or force likely to produce great bodily injury under California law is categorically a crime involving moral turpitude. Ceron v. Holder, 747 F.3d 773 (9th Cir. 2014) (en banc), distinguished.

Sexual violation case ruled upon

A sexual offense in violation of a statute enacted to protect children is a crime involving moral turpitude where the victim is particularly young—that is, under 14 years of age—or is under 16 and the age differential between the perpetrator and victim is significant, or both, even though the statute requires no culpable mental state as to the age of the child. Matter of Silva-Trevino, 26 I&N Dec. 826 (BIA 2016), clarified.

BIA Says Arizona Felony Conviction for Solicitation to Possess Marijuana for Sale Is a CIMT

In a precedent decision issued today, the BIA clarified Matter of Vo, holding that, within the jurisdiction of the Ninth Circuit, a returning lawful permanent resident (LPR) who has a felony conviction for solicitation to possess marijuana for sale is an arriving alien who is inadmissible under INA §212(a)(2)(A)(i)(I) for having committed a crime of moral turpitude (CIMT), even though that section of the INA refers only to attempt and conspiracy to commit a CIMT.

Identity theft ruled NOT to be CIMT

The Ninth Circuit granted the petitioners’ petitions for review, holding that the BIA erred in finding that their convictions for identity theft under California Penal Code §§530.5(a) and (d)(2) were categorically crimes involving moral turpitude, because violations of those subsections do not constitute fraud-based crimes, nor do they necessarily involve vile, base, or depraved conduct.

The Petty Offense Exception

Question: I committed a relatively small crime. Am I now not admissible to the U.S.?

Answer: It will depend on what exactly you committed. However, there is what is known as the petty offense exception.

Question: What is the petty offense exemption?

Answer: An alien (whether or not a minor) is not inadmissible if the CIMT is for a petty offense. A conviction (or admission) is considered a petty offense: “if the maximum penalty possible for the crime of which the alien was convicted … did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

Question: What if there is an undeterminate probationary period?

Answer: An undesignated probationary sentence, unlike an indeterminate sentence, is not considered a felony punishable by more than one year imprisonment, where the court has designated it a misdemeanor punishable by a maximum term of imprisonment of 6 months.

Question: What if the crime is a ‘wobbler’?

Answer: Cal. Penal Code §487.2 is a “wobbler” statute and where judge designates it as a misdemeanor, the BIA is bound by that determination for purposes of the petty offense exception. You need to look at each particular State.

Question: What if I had a drug conviction?

Answer: Department of State takes the position that the petty offense exception is not applicable to drug cases.

Question: What if I committed or admitted to more than 1 petty offense?

Answer: The petty offense exception is not applicable if more than one CIMT offense has been committed or admitted.

Question: What if I committed more than 1 crime, but only 1 is a CIMT?

Answer: Where there was a second CIMT, the “stop-time” rule applied because the petty offense exception only applies to the first CIMT. However, it remains effective where one of the 2 offenses was not for a CIMT. For example, an applicant who was convicted of a petty offense that was a CIMT and a second offense (battery) that was not a CIMT, he is not barred from cancellation, because he has not been convicted of an offense under §212(a)(2). It also remains effective for purposes of cancellation, where the second CIMT was not committed until after the residency requirement had accrued. The “stop-time” rule did not bar cancellation where first conviction was a petty offense and second conviction occurred after respondent accrued 7 years of continuous residence.

Question: What if I admit the facts of a particular crime?

Answer: If there was no conviction but the person admits facts, the petty offense exception applies and the alien is not inadmissible so long as the maximum sentence that could have been imposed does not exceed one year.

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Committed a crime?

Where the petitioner was charged with removal on the basis of his 2000 clock-stopping crime involving moral turpitude (CIMT), the Third Circuit found that Nelson v. Att’y Gen., notOkeke v. Gonzales, controlled. As such, the court held that the commission of the CIMT permanently prevented the clock from restarting, and that the petitioner could not accrue the requisite period of continuous residency when he re-entered the United States in 2003.

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