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Keywords

jurisdictionstatuteprobation
jurisdictionstatutefelonyprobation

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Rusz v. Ashcroft

Facts

In January 1998, the immigrant was convicted of two counts of second degree burglary in violation of Cal. Penal Code 459, arising from a single scheme of conduct. The immigrant's sentence was suspended, and he was placed on probation. In May 1998, the immigrant was caught shoplifting and pled guilty to petty theft with a prior conviction for burglary in violation of Cal. Penal Code 484, 488, and 666. The immigrant was sentenced to 37 days in custody and placed on three years probation. The United States claimed the court did not have jurisdiction to review the removal order if the immigrant's crimes qualified under 8 U.S.C.S. 1227(a)(2)(A)(i)(II).

In January 1998, Rusz was convicted in San Diego County Superior Court of two counts of second degree burglary in violation of California Penal Code 459, arising from a single scheme of conduct. Rusz' sentence was suspended, and he was placed on probation. In May 1998, Rusz was caught shoplifting and pled guilty to petty theft with a prior conviction for burglary in violation of California Penal Code 484, 488, and 666.

Issue

Whether a conviction for petty theft with a prior conviction under sections 484, 488, and 666 of the California Penal Code is a crime for which a sentence of one year or longer may be imposed under 8 U.S.C. 1227(a)(2)(A)(i).

We must decide whether a conviction for petty theft with a prior conviction under sections 484, 488, and 666 of the California Penal Code is a crime for which a sentence of one year or longer may be imposed under 8 U.S.C. 1227(a)(2)(A)(i).

Rule

Under 8 U.S.C. 1227(a)(2)(A)(i), an alien is removable if convicted of a crime involving moral turpitude and a crime for which a sentence of one year or longer may be imposed.

This section provides for the removal of 'any alien who — (I) is convicted of a crime involving moral turpitude . . . and (II) is convicted of a crime for which a sentence of one year or longer may be imposed.'

Analysis

The court applied the categorical approach to determine whether Rusz's conviction for petty theft with a prior qualifying offense carried a maximum possible sentence of over one year. The court concluded that the maximum possible sentence for petty theft with a prior qualifying offense under California's scheme is six months, which is less than one year. Therefore, the court held that it had jurisdiction to review the removal order.

Thus, our jurisdiction depends on whether Rusz' convictions qualify under 8 U.S.C. 1227(a)(2)(A)(i) and (ii).

Conclusion

The court held that the immigrant's conviction for petty theft was not a crime for which a sentence of one year or more could be imposed under the immigrant removal statute, and thus, the court had jurisdiction to review the final order of removal.

We hold that a felony conviction for petty theft with a qualifying prior offense under Cal. Penal Code 484, 488, 666 is not a 'crime for which a sentence of one year or longer may be imposed' under 8 U.S.C. 1227(a)(2)(A)(i)(II).

Who won?

The immigrant, Rusz, prevailed in the case because the court determined that his conviction for petty theft did not qualify as a removable offense under the statute.

The immigrant, Rusz, prevailed in the case because the court determined that his conviction for petty theft did not qualify as a removable offense under the statute.

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