identifying data deleted to
prevent
clearly
unwarr~nted
invaslon
of
personal pnvacy
PUBLIC
COpy
FILE:
IN
RE: Applicant:
Office: CHICAGO
U.S.
Department of Homeland Security
U.S.
Immigration
and
Citizenship Services
Office
of
Administrative Appeals
20 Massachusetts Avenue.
N.W.
MS
2090
Washingl,0fl.
DC
205~9-2090
U.S.
LitizenShip
and
Immigration
Services
Date:
JUN
0 1
2011
APPLICA TION: Application for Waiver
of
Grounds
of
Inadmissibility under section 212(h)
of
the
Immigration and Nationality Act, 8 U
.S.c.
ยง I 182(h).
ON BEHALF OF APPLICANT:
INSTRUCTIONS:
Enclosed please find the decision
of
the Administrative Appeals Office
in
your case. All
of
the documents
related to this matter have been returned to the office that originally decided your case.
Please be advised that
any further inquiry that you might have concerning your case must be made to that office.
Thank you,
.h(V~~
./
"Perry Rhew .
Chief, Administrative Appeals Office
www.uscis.gov
Page 2
DISCUSSION: The waiver application was denied
by
the Field Office Director, Chicago, Illinois,
and is now before the Administrative Appeals Office
(AAO) on appeal. The appeal will
be
dismissed, the previous decision
of
the Field Office Director will
be
withdrawn and the application
declared moot. The matter will be returned
to
the Field Office Director for continued processing.
The applicant is a native and citizen
of
Pakistan. The director stated that the applicant was
inadmissible under section 212(a)(2)(A)(i)(I)
of
the Immigration and Nationality Act (the Act), 8
U.S.C. ยง 1182(a)(2)(A)(i)(I), for having been convicted
of
committing crimes involving moral
turpitude. The director indicated that the applicant sought a waiver
of
inadmissibility pursuant
to
section 212(h)
of
the Act, 8 U.S.C. ยง 1182(h). The director concluded that the applicant had failed
to
establish that his bar
to
admission would impose extreme hardship on a qualifying relative, and
denied the Application for Waiver
of
Grounds ofInadmissibility (Form 1-601) accordingly.
On appeal, counsel states that on December
2,
2008, the Twenty-Second Judicial Circuit Court in
McHenry County, Illinois, vacated the judgment and order
of
conviction for retail theft entered on
November 28,
2006, and amended the charge to disorderly conduct in violation
of
720 ILCS 5/26-1.
Further, counsel indicates that a motion was filed on June
18,
2009 to withdraw the guilty plea and
vacate paragraphs 2 to 4
of
the order entered on December
2,
2008. Counsel states that in
consequence
of
that motion the court entered
an
order on December
3,
2009 in which it vacated the
applicant's pleas
of
guilty to retail theft and disorderly conduct, and granted the state's motion
to
"nolle pros." Counsel argues that section 212( a)(2)(A)(ii)(II)
of
the Act applies because the
applicant has only one retail theft conviction.
The
AAO will first address the finding
of
inadmissibility under section 212(a)(2)(A)(i)(I)
of
the Act.
The applicant has two retail theft convictions.
On February
17,
2004, the applicant pled guilty
to
and was found guilty
of
violation
of
720 ILCS 5116A-3(A). The applicant was sentenced
to
serve
three days
of
community service and one year
of
court supervision. On November 28, 2006, the
applicant pled guilty to violation
of
720 ILCS 5/16A-3(A). The judge withheld disposition, and the
applicant was sentenced to supervision and ordered
to
pay a fine, costs, and fees.
Section 212(a)(2)(A)
of
the Act states, in pertinent parts:
(i)
[A
]ny alien convicted of, or who admits having committed, or who admits
committing acts which constitute the essential elements
of
-
(I) a crime involving moral turpitude (other than a purely political
offense) or an attempt or conspiracy
to
commit such a crime
...
is
inadmissible.
(ii) Exception.-Clause (i)(I) shall not apply
to
an
alien who committed only one crime
if-
(I) the crime was committed when the alien was under
18
years
of
age, and the
crime was committed (and the alien was released from any confinement to a
prison or correctional institution imposed
for
the crime) more than 5 years before
Page 3
the date
of
the application for a visa or other documentation and the date
of
application for admission
to
the United States, or
(II) the maximum penalty possible for the crime
of
which the alien was
convicted (or which the alien admits having committed or
of
which the acts that
the alien admits having committed constituted the essential elements) 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).
Section
101(a)(48)(A)
of
the Act, 8 U.S.C. ยง 1101(a)(48)(A), defines "conviction" for immigration
purposes as:
A formal judgment
of
guilt
of
the alien entered by a court or,
if
adjudication
of
guilt
has been withheld, where -
(i) a judge or jury has found the alien guilty or the alien has entered a plea
of
guilty or nolo contendere or has admitted sufficient facts to warrant
a finding
of
guilt, and
(ii) the judge has ordered some form
of
punishment, penalty, or restraint
on the alien's liberty to be imposed.
Counsel does not dispute that the crimes
of
which the applicant was convicted involve moral
turpitude. However, counsel contends that the applicant is no longer inadmissible under section
212(a)(2)(A)
of
the Act on the basis
of
the state court's vacation
of
the applicant's November 28,
2006 conviction, and the applicant's eligibility for the petty offense exception under section
212(a)(2)(A)(ii)(II)
of
the Act. We agree for the reasons set forth in this decision.
On December 2, 2008, the state court ordered, based on the applicant's motion for relief from
judgment pursuant to 735 ILCS
5/2-1401, the following: (1) the judgment entered on November 28,
2006 for theft is vacated instanter; (2) the theft charge is amended to the charge
of
disorderly
conduct under 720 ILCS 5/26-1; (3) the applicant enters a guilty plea to the amended charge; and (4)
the applicant is resentenced to court supervision to be termed instanter with credit for the previous
fines and costs.
On June 18, 2009, counsel filed a motion to vacate part
of
the order entered on December 2, 2008.
In essence, the motion states that the applicant pled guilty to disorderly conduct, even though the
applicant was not charged with that offense on November 28,
2006; that the state court failed to
advise the applicant in accordance with 725 ILCS 5/113-8
of
the immigration consequences
of
his
guilty plea to the charge
of
disorderly conduct; and
if
the applicant had had that advisement he
would not have pled guilty.
Based on the motion, the state court ordered that the applicant's pleas
of
guilty be vacated and
granted the state's motion to
nolle pros.
Page
4
In
Matter
of
Roldan, 22 I&N Dec. 512 (BIA 1999), the Board oflmmigration Appeals (Board) held
that any subsequent, rehabilitative action that overturns a state conviction, other than on the merits or
for a violation
of
constitutional or statutory rights in the underlying criminal proceedings,
is
ineffective to expunge a conviction for immigration purposes. Id. at 523, 528. In Matter
of
Pickering, the Board reiterated that
if
a court vacates a conviction for reasons unrelated to a procedural
or substantive defect in the underlying criminal proceedings, the alien remains
"convicted" for
immigration purposes.
Matter
of
Pickering,
23
I&N Dec. 621,624 (BIA 2003).
Based on the record, the AAO finds that the court ordered that the applicant's pleas
of
guilty be
vacated and granted the state's motion to nolle pros for reasons related to a procedural defect in the
underlying criminal proceedings. We therefore find that the court's vacation
of
the November 28,
2006 conviction for retail theft eliminates the conviction for immigration purposes.
The
applicant's February
17,
2004
conviction
for
retail
theft offense qualifies
for
the
petty offense exception
under section 212(a)(2)(A)(ii)(II)
of
the
Act.
This exception applies where
the
maximum
penalty
possible
for
the
crime
of
which
the
alien
was
convicted
did
not
exceed
imprisonment
for
one
year,
and
the
alien
was
not
sentenced
to
a
term
of
imprisonment
in
excess
of 6
months.
720
ILCS
5116A-l
0 provides that "retail theft
of
property, the full retail value
of
which does not exceed $300, is a Class A misdemeanor." The term
"misdemeanor" is defined under 720 ILCS 5/2-11 as "any offense for which a sentence to a term
of
imprisonment in other than a penitentiary for less than one year may be imposed." The record shows
the applicant was convicted
of
misdemeanor retail theft and sentenced to serve three days
community service and one year
of
court supervision. Therefore, the applicant's offense qualifies for
the petty offense exception and the applicant is therefore not inadmissible under section
212(a)(2)(A)(i)(I)
ofthe
Act.
As such, the waiver application is unnecessary and the issue
of
whether the applicant established
extreme hardship to a qualifying relative pursuant to the Act is moot. Accordingly, the decision
of
the Field Office Director is withdrawn, the waiver application declared moot, and the appeal
dismissed.
ORDER:
The decision
of
the Field Office Director is withdrawn, the waiver application
declared moot, and the appeal dismissed. The matter will be return to the Field
Office Director for continued processing
of
the applicant's Form 1-485.
