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Theft offense

Matter of DIAZ-LIZARRAGA, 26 I&N Dec. 847 (BIA 2016)

(1) A theft offense is a crime involving moral turpitude if it involves a taking or exercise of control over another’s property without consent and with an intent to deprive the owner of his property either permanently or under circumstances where the owner’s property rights are substantially eroded.

(2) Shoplifting in violation of section 13-1805(A) of the Arizona Revised Statutes is categorically a crime involving moral turpitude.

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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