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Castillo-Cruz v. Holder

September 17, 2009

ISIDRO CASTILLO-CRUZ, PETITIONER,
v.
ERIC H. HOLDER JR., ATTORNEY GENERAL, RESPONDENT.



On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A091-517-162.

The opinion of the court was delivered by: Reinhardt, Circuit Judge

FOR PUBLICATION

Argued and Submitted May 12, 2009 -- San Francisco, California

Before: Mary M. Schroeder and Stephen Reinhardt, Circuit Judges, and Louis H. Pollak,*fn1 Senior District Judge.

OPINION

Isidro Castillo-Cruz petitions for review of the order of the Board of Immigration Appeals ("BIA") affirming without opinion the immigration judge's ("IJ") decision to pretermit his application for cancellation of removal. The IJ found that Castillo-Cruz had been convicted of two crimes of moral turpitude, petty theft and receipt of stolen property, rendering him statutorily inadmissible under 8 U.S.C. § 1182(a)(2)(A)(2)(i)(I) and ineligible for cancellation of removal under 8 U.S.C. § 1229b(b)(1)(C).*fn2 The IJ found that Castillo-Cruz's criminal convictions, because they involve crimes of moral turpitude, interrupt the period of ten years of continuous physical presence required for cancellation of removal, see 8 U.S.C. § 1229b(d)(1). The IJ further found that Castillo-Cruz's criminal convictions preclude him from showing "good moral character" during the requisite ten-year period, which the IJ stated should be calculated from the date Castillo-Cruz first entered the United States. But see 8 U.S.C. § 1229b(1)(A)-(B) (stating that for the purposes of cancellation, an applicant must demonstrate good moral character "for a continuous period of not less than 10 years immediately preceding the date of such application.")

We have jurisdiction under 8 U.S.C. § 1252(a)(1) to review a final order of removal, and under 8 U.S.C. § 1252(a)(2)(D) to review the constitutional and legal questions raised by individuals found removable based on criminal activity. See Galeana-Mendoza v. Gonzales, 465 F.3d 1054, 1056-57 (9th Cir. 2006). We affirm the IJ's determination that Castillo-Cruz's conviction for petty theft constituted a crime of moral turpitude, but reverse with respect to the receipt of stolen property determination. We further reverse with respect to the IJ's good moral character determination. Castillo-Cruz's single conviction for petty theft may fall within the petty offenses exception, see 8 U.S.C. § 1182(a)(2)(ii)(II). If it does, Castillo-Cruz would not be subject to the "stop time" rule of 8 U.S.C. § 1229b(d)(1) precluding him from establishing the requisite period of continuous presence. We therefore remand to the BIA so that it may decide in the first instance whether the petty theft conviction falls within the petty offenses exception, see 8 U.S.C. § 1182(a)(2)(ii)(II), and so that it may resolve any other issues that may exist regarding Castillo-Cruz's application for cancellation of removal.

I. BACKGROUND

Isidro Castillo-Cruz is a Mexican citizen who entered the United States around March of 1984 without inspection. He is the father of four United States citizen children, Lilibethe, Angel Alexis, Jeanette, and Edward Jesus.

In May 2003, the Department of Homeland Security ("DHS") served Castillo-Cruz with a notice to appear, charging him with being removable under the Immigration and Nationality Act ("INA") § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), for being present in the United States without being admitted. The Notice to Appear also alleged that he had been convicted of possession of stolen property in violation of Cal. Penal Code § 496 in April 1990.

Castillo-Cruz admitted the allegations in his Notice to Appear and conceded removability, but sought cancellation of removal under 8 U.S.C. § 1229b(b). In his application for cancellation of removal, he listed his prior convictions, which included, among others,*fn3 a 1989 petty theft misdemeanor conviction under Cal. Penal Code § 484/488, and a 1990 conviction for receipt of stolen property under Cal. Penal Code § 496.*fn4

The record of conviction showed that Castillo-Cruz had been sentenced to five months jail time and three years of probation for the latter offense.*fn5

The immigration judge ("IJ") granted the DHS's motion to pretermit Castillo-Cruz's cancellation application on the basis that both his 1989 conviction for theft and 1990 conviction for receipt of stolen property were crimes of moral turpitude.*fn6

The IJ found that because both crimes occurred within less than ten years of Castillo-Cruz's entry in 1984, he could not establish the requisite ten year period of continuous residence or good moral character. On April ...


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