The Fourth Circuit addressed whether an immigrant who had never been admitted to the United States, and who had been convicted of a crime involving moral turpitude that was punishable by no more than 1 year of imprisonment, could invoke the "petty offense" exception to qualify for cancellation of removal for non-lawful permanent residents. Deferring to the Board of Immigration Appeals' decision in Matter of Cortez, the court determined that the immigrant was statutorily barred from seeking cancellation of removal.
The court noted that the cancellation of removal statute, unlike other statutes (i.e. cancellation of removal for battered spouses) refers to convictions that arise under section 237(a)(2) of the Immigration and Nationality Act (INA) (convictions for crimes involving moral turpitude that are punishable by at least 1 year imprisonment), as opposed to convictions that render an individual deportable under this section. Thus, the fact that an individual has never been admitted, and thus, could never be charged with deportability under section 237(a)(2) of the INA, is irrelevant. A crime involving moral turpitude punishable by 1 year imprisonment would still arise under section 237(a)(2) of the INA, and thus, render an immigrant (whether admitted or not) ineligible for cancellation of removal for non-lawful permanent residents.
The full text of Hernandez v. Holder can be found here: http://www.ca4.uscourts.gov/Opinions/Published/141148.P.pdf