On October 14, 2018, the Board of Immigration Appeals (BIA or Board) dismissed the appeal of a respondent (for the 2ndtime) who had been found removable for being present in the U.S. without admission of parole. The Immigration Judge (IJ) had ordered the respondent removed, denying his cancellation of removal application. The initial appeal was dismissed by the BIA; the case was then brought before the Ninth Circuit Court of Appeals, which remanded it to the Board for further consideration of the applicant’s eligibility for cancellation under INA §240A(b)(1).
Respondent had been convicted of possession of a forged instrument under California Penal Code (CPC) §475(a) and sentenced to 12 days incarceration. The IJ found the offense to be a crime involving moral turpitude (CIMT) “for which a sentence of one year or longer may be imposed”, per INA §237(a)(2)(A)(i), because the maximum possible sentence at the time of conviction was 365 days; because of the CIMT conviction the IJ found the respondent ineligible for cancellation.
As background, after the first appeal to the BIA, California enacted CPC §18.5, which states that every offense now punishable by imprisonment in county jail up to or not exceeding one year shall be punishable by imprisonment in county jail for a period not to exceed 364 days. Despite this provision, the Board found respondent had been convicted of an offense under §237(a)(2)(A)(i) because, at the time of the conviction, the maximum possible sentence for the crime was 1 year. Noting that §18.5 did not become effective until after appellant’s conviction and nothing indicated the statute had retroactive effect, the BIA dismissed the initial appeal.
While respondent’s petition for review was pending with the Ninth Circuit, California amended §18.5 to apply retroactively to all convictions, regardless of when the case became final. In response, the Government filed a motion to remand the matter back to the Board so it could consider the amendment’s impact on respondent’s eligibility for cancellation. Given that the BIA claimed the forgery offense is “clearly” a CIMT because it necessarily involved the specific intent to defraud another, the decision set forth the “sole issue” as whether, in light of §18.5, respondent’s conviction remains a crime for which a sentence of one year or longer may be imposed under §237 (a)(2)(A)(i)(II). This, concluded the BIA, requires a “backward-looking inquiry” into the maximum sentence respondent could have received for his offense at the time of his conviction.
The BIA thus held that the amendment to CPC §18.5, which retroactively lowered the maximum possible sentence that could have been imposed from 365 to 364 days, does not affect the applicability of INA §237(a)(2)(A)(i)(II) to a past conviction for a CIMT “for which a sentence of one year or longer may be imposed”, citing to prior Board [Matter of Cortez, 25 I & N Dec. 301 (BIA 2010)] Ninth Circuit [United States v. Diaz 838 F.3d 968 (9thCir. 2016), cert. denied sub nom. Vasquez v. United States, 137 S. Ct. 840 (2017)], and U.S. Supreme Court [McNeill v. United States, 563 U.S. 816 (2011)] case law. Because respondent’s forgery conviction was entered in 2003, prior to the effective date of §18.5, at which time “the maximum possible sentence for the crime was 365 days,” the BIA reiterated that 18.5 “does not affect the applicability of 237(a)(2)(A)(i)(II) to his forgery offence and dismissed the appeal. Matter of Velasquez-Rios, 27 I & N Dec. 470 (BIA 2018).
