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Petty Offense Exception

The “petty offense exception” applied to a person with only one conviction for a crime involving moral turpitude (CIMT). Since so many offenses can be classified as crimes involving moral turpitude, many noncitizens risk being excluded even for minor convictions. Coming within the Petty Offense Exception is one way to avoid this exclusion. This exception excuses inadmissibility, but not deportability, on account of a conviction of, or admission of committing, one crime of moral turpitude. It does not excuse any other ground of inadmissibility, such as a drug conviction.

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The person must meet the following criteria under INA § 212(a)(2)(A)(ii)(II):

  • 1. The person only committed one crime involving moral turpitude (ever);
  • 2. The person must not have been “sentenced to a term of imprisonment in excess of six months”
    (sentenced defined as time ordered to be served in jail or prison and not on probation); and
  • 3. The offense must have a maximum possible sentence of one year.

COMMISSION OF ONLY ONE CMT

If the government shows, by a preponderance of the evidence, that a noncitizen has committed a second CMT, s/he will no longer be eligible for the petty offense exception to inadmissibility. Counsel should check the defendant’s entire criminal record to make sure that s/he has committed only one crime involving moral turpitude.  Commission of a second moral turpitude offense, even if the conviction was expunged, or charges were dismissed and there was no second conviction at all, will disqualify the defendant from eligibility for the Petty Offense Exception to inadmissibility for one CMT.  On the other hand, previous non-turpitude convictions (e.g., driving under the influence, simple assault) will not disqualify the defendant from receiving the Petty Offense Exception.

A court finding that a defendant violated a condition of probation does not constitute a conviction, and therefore does not establish that the defendant committed a second CMT for purposes of disqualifying him or her from the petty offense exception to inadmissibility.  However, if the conduct underlying the violation of probation constitutes CMT conduct (i.e., the commission of a second CMT), the conduct could disqualify a noncitizen from the Petty Offense Exception. Counsel should examine the petition filed in the criminal court alleging a violation of probation, and any attached documents such as police reports, and determine the nature of the conduct resulting in the allegation that the defendant violated probation.

The question of whether a noncitizen has committed a second CMT is a conduct-based factor, and the noncitizen is free to contest it as a factual matter.  The client could testify in removal proceedings they did not commit the second CMT, or call other witnesses to prove this.

For example, in the context of determining whether a noncitizen on supervised release from immigration detention had violated the term of the release requiring that he not “commit any crimes, “ the Ninth Circuit has held that a plea of no contest in criminal proceedings is insufficient evidence to show that the noncitizen has committed a crime, since a nolo contendere plea is not an admission of guilt to the underlying crime. Applied in this context, counsel can argue that a no contest plea cannot be used to establish that a noncitizen has “committed” another CMT, because even though there is a conviction, a no contest plea gives no proof that the offense of conviction was “committed” by the defendant. Other evidence, however, could be used to prove the conduct.

Counsel can also argue (similarly to the single scheme concept applied to the two or more CMT ground of deportability) that a second CMT committed as part of the same criminal act does not disqualify a person from the Petty Offense Exception.

SENTENCE IMPOSED OF SIX MONTHS OR LESS

The immigrant will qualify for the Petty Offense Exception if s/he obtains a sentence imposed of six months or less, or suspended imposition of sentence with six months or less jail time as a condition of probation.  This requirement is violated by a court-ordered sentence in excess of six months, even if the person does not actually serve a sentence in excess of six months.[9]  Note, however, that the definition of “sentenced to imprisonment in excess of six months” is technical.  See, generally, Criminal Defense of Immigrants Chapter 10, supra.  For example, if a term of imprisonment in excess of six months is imposed, suspended execution of that sentence does not prevent the entire sentence (including the portion as to which execution was suspended) from being counted as a sentence for this purpose, disqualifying the noncitizen from eligibility for the Petty Offense Exception.

The actual sentence imposed by the court determines whether the person meets this requirement for the Petty Offense Exception, even if the conviction occurred in a foreign country.

A prison term “in excess of six months” is generally assumed to mean a term in excess of 180 days.  Counsel can argue, however, that a sentence imposed of 182 days would not disqualify a person from the Petty Theft Offense Exception, since a year consists of 365 days, and half a year (i.e., six months), would therefore consist of 182.5 days.

MAXIMUM POSSIBLE SENTENCE OF ONE YEAR

The Petty Offense Exception also requires that the maximum sentence of imprisonment that could have been imposed be one year or less; a greater maximum is a disqualifier. For offenses committed in the United States, the criminal statute that establishes the maximum allowable time in custody for the crime of which the defendant was convicted determines whether this requirement is met.

If the conviction is for a misdemeanor rather than a felony, the Petty Offense Exception can apply, assuming the misdemeanor is punishable by a maximum of one year or less in custody.  Some states’ statutory schemes differ, however, so the particular state statute establishing the maximum for the offense of conviction must be consulted to determine whether the maximum possible sentence for the misdemeanor is one year or less in custody. Similarly, in some states, the maximum custody for some felonies is one year or less.  Where this is so, the felony CMT does not disqualify the noncitizen from eligibility for the Petty Offense Exception.  This requirement depends on the maximum, not the felony or misdemeanor label of the offense.

If the offense could be either a felony or a misdemeanor, and the initial conviction is for a felony, the immigrant may be able in some states, such as Arizona and California,  to obtain reduction from a felony to a misdemeanor. Because the immigration authorities are bound by the most recent sentence ordered, they must give effect to a state court reduction of the offense from a felony to a misdemeanor, and the conviction will thereby fall within the one-year maximum sentence requirement of the Petty Offense Exception, if the new misdemeanor maximum is one year or less.

IN REMOVAL PROCEEDINGS

The petty offense exception does not always make you eligible for cancellation of removal for non-permanent residence (42b cancellation).

Matter of CORTEZ, 25 I&N Dec. 301 (BIA 2010)

An alien who has been convicted of a crime involving moral turpitude for which a sentence of a year or longer may be imposed has been convicted of an offense “described under” section 237(a)(2) of the Act, 8 U.S.C. § 1227(a)(2) (2006), and is therefore ineligible for cancellation of removal under section 240A(b)(1)(C) of the Act, 8 U.S.C. § 1229b(b)(1)(C) (2006), regardless of the alien’s eligibility for the petty offense exception under section 212(a)(2)(A)(ii)(II) of the Act, 8 U.S.C. § 1182(a)(2)(A)(ii)(II) (2006). Matter of Almanza, 24 I&N Dec. 771 (BIA 2009), clarified. Matter of Gonzalez-Zoquiapan, 24 I&N Dec. 549 (BIA 2008); Matter of Gonzalez-Silva, 24 I&N Dec. 218 (BIA 2007); and Matter of Garcia-Hernandez, 23 I&N Dec. 590 (BIA 2003).

EFFECTIVE DATE ISSUES

EFFECTIVE DATE OF CURRENT PETTY OFFENSE EXCEPTION

The current definition of the Petty Offense Exception applies only to individuals entering the United States on or after June 1, 1991. Individuals who entered prior to that date are subject to the former terms of the Petty Offense Exception, which did not contain the requirement of a one-year maximum possible sentence.

Therefore, a noncitizen convicted of a felony with a maximum greater than one year, who entered the United States before this effective date, would not have been inadmissible at entry if the CMT conviction otherwise qualified for the Petty Offense Exception, and would therefore not be deportable for being inadmissible at entry.Second, the stop-time rule for cancellation of removal would not have been triggered by such a felony conviction as to an entry prior to this effective date.  See § 3.6, infra.

DATE OF DETERMINATION OF ADMISSIBILITY  

The determination of whether the person qualifies for the Petty Offense Exception is made under the law as it existed at the time entry was sought, rather than under the law at the time the criminal acts or conviction occurred. A returning resident, however, who was paroled into the United States because of pending criminal charges, and who was later convicted of a crime involving moral turpitude, was excludable on the basis of the conviction.  If a United States citizen was convicted of an offense that triggers inadmissibility, and then later expatriated, s/he was at that point excludable because they were a noncitizen with an excludable conviction at the time s/he attempted to enter the United States.

PETTY OFFENSE EXCEPTION & DRUG CONVICTIONS

The primary use of the Petty Offense Exception is to excuse inadmissibility on account of a conviction of, or admission of committing, one crime involving moral turpitude. The exception does not excuse inadmissibility on account of a drug conviction.  The statute defining the Petty Offense Exception does not distinguish between admissions (of a crime or of acts which would form the elements of a crime) and actual convictions and so defeats inadmissibility in both cases.  The Petty Offense Exception also defeats a ground of deportability in which the DHS charges the respondent with having been inadmissible at the time of admission for having committed a crime involving moral turpitude.  In addition, a conviction coming within the Petty Offense Exception cannot be used to preclude a showing of Good Moral Character for purposes of voluntary departure. A conviction coming within the Petty Offense Exception also will not stop the clock for cancellation of removal applicants.

QUALIFYING FOR THE PETTY OFFENSE EXCEPTION

The immigrant generally has the burden of showing he or she qualifies for the Petty Offense Exception.  To do this, it is necessary to obtain certified copies of the criminal court records proving the offense of conviction and the sentence imposed by the court.  It is also necessary to obtain a copy of the criminal statute defining the crime and setting forth  the maximum possible sentence to confinement on the exact date on which the offense was committed.  Finally, it may be useful to obtain a copy of the criminal history to show that the person had never committed a second CMT offense at any time.

It may also be useful to obtain an opinion letter from an attorney showing how these records prove the client qualifies for the Petty Offense Exception.

RESOURCES

For additional information, see N. Tooby, J. Rollin & J. Foster, Crimes of Moral Turpitude § 4.5 (2008); N. Tooby & J. Rollin, Criminal Defense of Immigrants § 20.29 (2007); Rosenberg, No Heartbreaker This Time: Petty Offense Rulings Favor Applicants, 8 Bender’s Imm. Bull. 960 (June 1, 2003).

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