Crimes of Moral Turpitude

 

In order to be eligible for any form of cancellation of removal, except Special Rule Cancellation,[80] a noncitizen must have been lawfully present in the United States in any status continuously for a specified period of time prior to the date of commission of the offense or prior to the date of initiation of removal proceedings, whichever comes first.[81]  The required periods differ depending on whether the noncitizen is a lawful permanent resident (seven years),[82] a non-lawful permanent resident (ten years),[83] or a noncitizen that falls within the provisions of the Violence Against Women’s Act (three years).[84]

 

It was previously understood that for lawful permanent residents, the required period of residence since admission begins at any lawful admission, e.g., admission as a tourist, refugee, or lawful permanent resident.[6]  This may no longer be the case.  The BIA has recently held that the five-year admission requirement, to trigger[7] (deportation for single crime of moral turpitude within five years of admission), starts fresh with each admission.[8]  This decision could also mean that the continuous physical presence period for cancellation for lawful permanent residents restarts upon each admission (e.g., adjustment from H1-B status to LPR).  This issue will likely turn upon statutory language requiring the noncitizen to have seven years presence “after having been admitted in any status.”[9]  A number of courts disagree with this decision.  See § 5.5, infra.

 

Adjustment to lawful permanent residence should be held to constitute an admission for purposes of the seven-year continuous presence requirement even where the noncitizen did not initially enter lawfully.[10]  Neither the non-LPR nor VAWA forms of cancellation require that the initial admission be lawful.  The time a noncitizen is in the United States under Temporary Protected Status[11] is not counted toward the period of continuous physical presence.[12] 

 

            The seven years continuous residence ends either when a Notice to Appear is issued (except in the case of VAWA applicants), or the noncitizen “commits” certain offenses.  The offense committed must a) be referred to in INA § 212(a)(2), and b) cause the person to be deportable or inadmissible under the designated grounds.  Section 212(a)(2) lists grounds of inadmissibility triggered by convictions for CMTs and controlled substances offenses, and multiple convictions of any sort with a five-year sentence imposed, but not others.[85]  If an act or conviction is not referred to in INA § 212(a)(2), 8 U.S.C. § 1182(a)(2), it does not stop accrual of time under INA § 240A(d), 8 U.S.C. 1229b(d) for purposes of LPR cancellation of removal.  The offense need not have been charged in the NTA as a ground of removal.[14]

 

            Commission of a CMT also does not stop the clock where the Petty Offense, Youthful Offender, or Political Offense exceptions prevent the conviction from triggering inadmissibility.[86]  The BIA has held that the clock stops on the date of commission of the offense,[87] even where a conviction or some other act was needed to make the person inadmissible or deportable.[88]  However, if the first conviction is vacated on a ground of legal invalidity, this arguably un-stops the clock.  See § 10.3, infra.

            In Sinotes-Cruz v. Gonzales,[89] the Ninth Circuit has held that the stop-time rule did not apply to convictions[90] that occurred prior to April 1, 1997.  The court soon limited this holding to persons who were eligible for cancellation of removal on April 1, 1997, but for the stop-time rule.[91]  That is, the noncitizen must have accrued the full seven years physical presence before April 1, 1997 for the stop-time rule.  This limitation likely also requires that the noncitizen must have met the 5-year LPR requirement by April 1, 1997 as well.

 

            The Fifth Circuit had also found the stop-time rule to be impermissibly retroactive, but later de-published the decision.[92]  Four district courts had also held that the stop-time rule does not apply to convictions entered before April 1, 1997.[93]  Other courts, including the BIA, disagree.[94]

[95] See § 3.22, infra; 8 C.F.R. § 240.64(b).

[96] INA § 240A(d)(1).

[97] INA § 240A(a)(2).  The stop-time rule does not apply to accrual of the five years lawful permanent resident status required under INA § 240A(1).

[98] INA § 240A(b)(1)(A).

[99] INA § 240A(b)(2)(A)(ii).  Commencement of immigration proceedings does not stop the clock for noncitizens eligible for cancellation under this provision.

[100] A parent’s admission for permanent resident status is imputed to the parent’s unemancipated minor children residing with the parent.  Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir. Dec. 7, 2005).

[101] INA § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i).

[102] Matter of Shanu, 23 I. & N. Dec. 754 (BIA 2005).

[80] INA § 240A(a)(2), 8 U.S.C. § 1229b(a)(2).

[81] See Matter of Rosas, 22 I. & N. Dec. 616 (BIA 1999).

[82] See § 3.36, infra.

[83] INA § 244(e), 8 U.S.C. § 1254a(e).

[84] Examples of offenses that are not referred to in § 212(a)(2) but that could make a person deportable under § 237(a)(2) or (4) are firearms offenses (basis for deportability but not inadmissibility), simple assault against a spouse or violation of a temporary restraining order (a basis for deportability under the domestic violence ground, but not a basis for inadmissibility unless it is found to be turpitudinous), and drug addiction or abuse (basis for inadmissibility, but in § 212(a)(1) rather than in 212(a)(2)). 

[85] Matter of Jurado-Delgado, 24 I. & N. Dec. 29 (BIA Sept. 28, 2006) (commission of offense stops the clock for cancellation of removal, by terminating a period of continuous residence in the United States pursuant to INA § 240A(d)(1)(B), 8 U.S.C. § 1229b(d)(i)(B), even though the offense was not charged as nor found to be a ground of inadmissibility or deportability), distinguishing Matter of Fortiz, 21 I. & N. Dec. 1199 (BIA 1998).  See also Salviejo-Fernandez v. Gonzales, 455 F.3d 1063 (9th Cir. 2006) (rejecting due process challenge to use of uncharged conviction to find a noncitizen ineligible for relief).

[86] Matter of Deanda-Romo, 23 I. & N. Dec. 597 (BIA 2003) (CMT conviction falling within petty offense exception does not trigger stop-time rule for cancellation of removal, under INA § 240A(d)(1)(B); noncitizen had accrued seven years before second CMT offense was committed).

[87] Even if a conviction constituted a CMT, respondent can argue that the stop-time rule of INA § 240A(d) does not apply to pre-IIRAIRA acts. See Henry v. Ashcroft, 175 F. Supp. 2d 688 (S.D. N.Y. 2001); but see Matter of Perez, 22 I. & N. Dec. 689 (BIA 1999) (decided prior to St Cyr).  See also Otarola v. INS, 270 F.3d 1272 (9th Cir. 2001) (reversing BIA decision to apply stop-time rule because frivolous INS appeal kept case alive until stop-time rule came into effect).

[88] Matter of Perez, 22 I. & N. Dec. 689 (BIA 1999).  See dissent by four Board members for appellate arguments.

[89] Sinotes-Cruz v. Gonzales, 468 F.3d 1190 (9th Cir. Nov. 22, 2006).

[90] Not commission.

[91] Valencia-Alvarez v. Gonzales, 469 F.3d 1319 (9th Cir. Dec. 6, 2006).

[92] Gonzalez-Garcia v. Gonzales, 431 F.3d 234 (5th Cir. Nov. 16, 2005) (convictions that pre-date the April 1, 1997 effective date of INA § 240A(d)(1), 8 U.S.C. § 1229b(d)(1) [cancellation stop-time rule] do not stop the clock for purposes of cancellation of removal), withdrawn from publication.

[93] Mulholland v. Ashcroft, No. 04-CV-0701 (E.D.N.Y. Oct. 25, 2004) (unpublished) (IIRAIRA stop-time rule cannot be applied to bar cancellation of removal based upon pre-IIRAIRA conviction of a crime involving moral turpitude); Generi v. Ashcroft, No. 4:03-CV-15 (W.D.Mi. Feb. 19, 2004) (unpublished) (stop-time provision may not be applied retroactively to guilty pleas entered prior to the passage of IIRAIRA where proceedings were begun post-IIRAIRA); Henry v. Ashcroft, 175 F.Supp.2d 688 (S.D.N.Y. 2001) (same).  One court held this rule does not apply to the offense date.  Worrell v. Ashcroft, 207 F.Supp.2d 61, 67 (W.D.N.Y. 2002) (stop-time rule is not an impermissibly retroactive application to someone who committed the crime before the effective date).

[94] Peralta v. Gonzales, 441 F.3d 23 (1st Cir. Mar. 23, 2006) (stop-time rule for cancellation of removal applies retroactively to convictions prior to IIRAIRA); Matter of Jurado-Delgado, 24 I. & N. Dec. 29 (BIA Sept. 28, 2006) (commission of criminal offense mentioned in INA § 212(a)(2) that constitutes a ground of inadmissibility or deportability stops accrual pursuant to INA § 240A(d)(1)(B), 8 U.S.C. § 1229b(d)(i)B) of period of continuous residence for cancellation of removal even though committed prior to effective date of IIRAIRA), following Matter of Perez, 22 I. & N. Dec. 689 (BIA 1999); Matter of Robles, 24 I. & N. Dec. 22 (BIA 2006) (Supreme Court’s decision in INS v. St. Cyr, 533 U.S. 289 (2001), does not require different conclusion).