Rachel Game

Nov. 2, 2010 LOZANO ARREDONDO v. HOLDER

Following the rather disastrous BIA decision Matter of Cortez immigration attorneys have been holding their breath for a Ninth Circuit decision addressing the issue. Cortez is important because it dramatically changed who is eligible for non LPR cancellation of removal (application EOIR-42B) through a flawed statutory interpretation of INA 237(a)(2)(A)(i).  The BIA held that a Respondent who has a conviction for a crime involving moral turpitude (CIMT) where the maximum possible term of imprisonment is one year, will no longer be eligible for 42B relief.  Before Cortez, a Respondent remained eligible for relief despite a misdemeanor CIMT conviction if they qualified for the Petty Offense exception in INA 212(a)(2)(A)(ii)(II).

In LOZANO ARREDONDO,  the Ninth Circuit was reviewing a BIA decision that held that the Respondent, who had an Idaho conviction for petty theft, was statutorily ineligible for cancellation.  The Court said that the  ”the BIA did not discuss the problem that the Idaho conviction was recorded in 1997, more than five years after Petitioner entered this country.1 See 8 U.S.C. § 1227(a)(2)(A)(i)(I). Another difficulty with the Idaho conviction is that the maximum sentence under the Idaho law was one year, which did not “exceed one year,” the language used in the petty crime exception to crimes described in 8 U.S.C. § 1182 (a)(2)(A)(ii)(II).

1The conviction did occur within the ten year “stop time” period referred to by the IJ.

The case was remanded back to the BIA to explain why it found the Respondent is statutorily ineligible for cancellation. In one brief sentence and the Court’s points to the BIA’s problem that under INA 237(a)(2)(A)(i)(I) the CIMT must be committed within 5 years after admission. I believe the Ninth Circuit has signaled Matter of Cortez is on shaky grounds out West.