(D)  Maximum Possible Sentence of One Year or Less in Custody.  The Petty Offense Exception also requires a maximum sentence of imprisonment that could have been imposed of one year or less; a greater maximum is a disqualifier.[186]  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.[187]

 

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 in custody.[188]  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 Offens 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 to obtain reduction from a felony to a misdemeanor.[189]  Because the immigration authorities are bound by the most recent sentence ordered,[190] 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.[191]

 

[186] See, e.g., Membreno v. Ashcroft, 385 F.3d 1245 (9th Cir. Oct. 19, 2004) (California conviction of assault with a firearm, in violation of Cal. Penal Code § 245(a)(2), for which imposition of sentence was suspended and six months imposed as a condition of probation, remained a felony since court did not expressly reduce the conviction to a misdemeanor; conviction therefore did not fall within the Petty Offense Exception).

[187] See Matter of Mendoza, 11 I. & N. Dec. 239, 240-241 (BIA 1965); Matter of CO, 8 I. & N. Dec. 488, 490-491 (BIA 1959).  It has been pointed out that this approach produces divergent results, as one state may provide a different maximum for a given offense than another state.  Note, Exclusion or Deportation of Aliens for the Conviction of Foreign Crimes Involving Moral Turpitude: Grand Problems with the Petty Offense Exception, 14 Cornell Int’l L.J. 135, 140-141 (1981). 

[188] Cf. Liao v. Rabbett, 398 F.3d 389 (6th Cir. Feb. 7, 2005) (Ohio conviction of possession of heroin, in violation of Ohio Rev. Code § 2925.11, a “fifth degree felony” under Ohio law, which is punishable by a maximum term of 12 months’ imprisonment, did not constitute an aggravated felony drug trafficking offense, under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B)).

[189] This will fulfill the third requirement for the Petty Offense Exception, that the maximum sentence must be one year or less.  LaFarga v. INS, 170 F.3d 1213 (9th Cir. 1999).

[190] See § 11.10, supra.

[191] Garcia-Lopez v. Ashcroft, 334 F.3d 840 (9th Cir. June 26, 2003) (California court order reducing grand theft conviction from a felony to a misdemeanor with a maximum no greater than one year, was binding upon the immigration courts for purposes of qualifying the offense under the petty offense exception to inadmissibility for a crime of moral turpitude), Lafarga v. INS, 170 F.3d 1213, 1215 (9th Cir. 1999) (same for Arizona reduction).

BIA

CRIMES OF MORAL TURPITUDE " PETTY OFFENSE EXCEPTION " MAXIMUM POSSIBLE SENTENCE CONTROLS
Matter of Ruiz-Lopez, 25 I&N Dec. 551 (BIA 2011) (maximum possible sentence for an offense, rather than the standard range of sentencing under a States sentencing guidelines, determines eligibility for the petty offense exception under INA 212(a)(2)(A)(ii)(II), 8 U.S.C. 1182(a)(2)(A)(ii)(II); but see United States v. Simmons, ___ F. 3d ___ (4th Cir. Aug 17, 2011)(where state sentence statute prohibits sentence in excess of one year, state conviction is not a felony under the federal definition even though statute defining the offense permits a greater sentence).

CRIMES OF MORAL TURPITUDE " PETTY OFFENSE EXCEPTION
Matter of Garcia, 25 I.& N. Dec. 332 (BIA 2010) (conviction for a single crime involving moral turpitude that qualifies as a petty offense is not for an offense referred to in section 212(a)(2), for purposes of triggering the stop-time rule even if it renders the alien removable under INA 237(a)(2)(A)(i), 8 U.S.C 1227 (a)(2)(A)(i).)

CRIMES OF MORAL TURPITUDE - PETTY OFFENSE EXCEPTION RELIEF - CANCELLATION OF REMOVAL FOR NON-LPRS - NONCITIZEN CONVICTED OF CMT IS INELIGIBLE REGARDLESS OF STATUS AS ARRIVING ALIEN
Matter of Gabriel Almanza-Arenas, 24 I. & N. Dec. 771 (BIA. Apr. 13, 2009) (noncitizen who has been convicted of a crime involving moral turpitude has been "convicted of an offense under" INA 237(a)(2), 8 U.S.C. 1227(a)(2)(2006), and is therefore ineligible for cancellation of removal under INA 240A(b)(1)(C), regardless of his status as an arriving alien or his eligibility for a petty offense exception under INA 212(a)(2)(A)(ii)(II), 8 U.S.C. 1182(a)(2)(A)(ii)(II)).

NOTE: This is a bad decision, contrary to earlier BIA precedent. Counsel should argue that this case applies only within the Ninth Circuit, as it relies upon a Ninth Circuit decision from 2004. Gonzalez-Gonzalez v. Ashcroft, 390 F.3d 649 (9th Cir. 2004) found that the plain language of 240A(b)(1)(C) required a noncitizen in inadmissibility proceedings be denied non-LPR cancellation because hed been convicted of a DV offense. This holding was based upon the "plain language" of the statute, thus no Chevron deference owed to the BIA cases to the contrary.

Under Matter of Garcia-Hernandez, such a person is not ineligible because the petty offense exception of 212(a) is incorporated into the moral character and specified offense bars of 240A(b)(1)(c) . This was recently reaffirmed in Matter of Gonzalez-Zoquiapan, 24 I&N Dec. 549, 554 (BIA 2008).

The BIA didnt address whether Almanza-Arenas had committed the CMT more than five years after his entry into the U.S. Arguably (see Moran v. Ashcroft, 395 F.3d 1089 (9th Cir. 2005)), a noncitizen with a CMT conviction is still ok if the offense falls within the petty offense exception AND was committed more than five years after entry to the U.S. INA 237(a)(2)(A)(i). Gonzalez v. Gonzalez didnt address the issue that a DV offense must be committed after admission to trigger removal. Counsel can argue that for purposes of 240A(b), the "admission" language is (somehow) deemed irrelevant in light of Gonzalez-Gonzalez, but the rest of the 237 language remains, including the five year requirement to trigger removal.

GOOD MORAL CHARACTER - PETTY OFFENSE EXCEPTION
Matter of Gonzalez-Zoquiapan, 24 I. & N. Dec. 549 (BIA Jun. 25, 2008) (reaffirming that CMT offense that falls within petty offense exception to inadmissibility does not create bar to good moral character), following Matter of Garcia-Hernandez, 23 I. & N. Dec. 590, 593 (BIA 2003).

PETTY OFFENSE EXCEPTION - SINGLE SCHEME
Matter of Medina-Lopez, 10 I & N Dec. 7 (BIA 1962) (the respondent in this case had been convicted, in Mexico, of petty theft and assault arising from a single mugging incident, the BIA determined that because these two offenses arose out of a "single scheme of misconduct" the convictions amounted to an equivalent to a single conviction for robbery, which if prosecuted under the District of Columbia Code, would have been punishable as a felony, and therefore did not qualify for the petty offense exception to inadmissibility). Thanks to Richard Breitman.

PETTY OFFENSE EXCEPTION - COMMISSION OF SECOND CMT AS DISQUALIFICATION - BURDEN OF PROOF
Matter of SF, 7 I. & N. Dec. 495 (BIA 1957) (if the preponderance of the evidence shows the noncitizen committed a second CMT, the petty offense exception to inadmissibility for one CMT conviction or admission does not apply).

First Circuit

CRIMES OF MORAL TURPITUDE " PETTY OFFENSE EXCEPTION " CONVICTION BARS NON-LPR CANCELLATION OF REMOVAL EVEN THOUGH IT FITS WITHIN THE PETTY OFFENSE EXCEPTION TO MORAL TURPITUDE INADMISSIBILITY
Hernandez v. Holder, 783 F.3d 189 (4th Cir. Apr. 14, 2015) (deferring to Matter of Cortez Canales, 25 I. & N. Dec. 301, 306"08 (2010), to find noncitizen barred from non-LPR cancellation of removal under INA 240A(b)(1), 8 U.S.C. 1229b(b)(1), due to being removable under INA 237(a)(2)(A)(i), 8 U.S.C. 1227(a)(2)(A)(i), even though the noncitizens only crime fits within the petty offense exception to inadmissibility).

CRIMES OF MORAL TURPITUDE - PETTY OFFENSE EXCEPTION - MAXIMUM SENTENCE IS DETERMINED BY THE STATUTE, NOT THE GUIDELINES
Mejia-Rodriguez v. Holder, ___ F.3d ___, 2009 WL 456386 (1st Cir. Feb. 25, 2009) (for purposes of eligibility for the petty offense exception to inadmissibility, under INA 212(a)(2)(A) (ii)(II), 8 U.S.C. 1182(a)(2)(A)(ii)(II), the term "maximum penalty possible" is defined as the statutory range of imprisonment and not the federal Sentencing Guidelines range), following Mendez-Mendez v. Mukasey, 525 F.3d 828, 832-35 (9th Cir. 2008).

Eighth Circuit

PETTY OFFENSE EXCEPTION - FELONY - CHARGING PAPER IS NOT DISPOSITIVE AS TO WHETHER CALIFORNIA WOBBLER, ALSO KNOWN AS ALTERNATIVE FELONY-MISDEMEANOR, IS A FELONY, SINCE THE COURT AT SENTENCE MAY REDUCE IT TO A MISDEMEANOR FOR ALL PURPOSES
United States v. Viezcas-Soto, 562 F.3d 903 (8th Cir. Apr. 10, 2009) (in California, the information filed as a felony is not dispositive of the felony-misdemeanor inquiry - i.e. whether the maximum punishment is in excess of one year; a California "wobbler" becomes a felony or misdemeanor only after the court enters judgment imposing a punishment), citing Cal. Penal Code 17(b)(1); see United States v. Brown, 33 F.3d 1014, 1018 (8th Cir.1994); United States v. Gomez-Hernandez, 300 F.3d 974, 978 (8th Cir.2002); United States v. Robinson, 967 F.2d 287, 293 (9th Cir.1992)).

Ninth Circuit

CRIMES OF MORAL TURPITUDE " INADMISSIBILITY " PETTY OFFENSE EXCEPTION " NOT DISCRETIONARY
Cervantes v. Holder, ___ F.3d ___, 2014 WL 6463031 (9th Cir. Nov. 19, 2014) (the petty offense exception to inadmissibility, under INA 212(a)(2)(A)(ii), 8 U.S.C. 1182(a)(2)(A)(ii), based on a crime of moral turpitude, is mandatory and does not have any discretionary component); accord, Matter of Salvail, 17 I. & N. Dec. 19, 21 (BIA 1979) (explaining that the relief afforded by the petty offense exception is mandatory).

RELIEF - CANCELLATION FOR NON-LPRS - PETTY OFFENSE EXCEPTION
Vasquez-Hernandez v. Holder, 590 F.3d 1053,1055 n.2 (9th Cir. Jan. 6, 2010) (leaving open the question of whether an applicant for non-LPR cancellation of removal, who has a conviction that fits within the petty offense exception to inadmissibility, under INA 212(a)(2)(A)(ii)(II), is barred from cancellation of removal because of the conviction, where the "offense" of conviction is not described by any non-CMT grounds of deportation).

RELIEF - CANCELLATION FOR NON-LPRS - PETTY OFFENSE EXCEPTION
Vasquez-Hernandez v. Holder, 590 F.3d 1053 (9th Cir. Jan. 6, 2010) (California conviction of corporal injury of a spouse, in violation of Penal Code 273.5(a), which fit within the petty offense exception to inadmissibility, nonetheless disqualified respondent from eligibility for cancellation of removal for non-LPRs, under INA 240A(b), because the same offense could have been grounds for deportation as a crime of domestic violence, under INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i)).

PETTY OFFENSE EXCEPTION
United States v. Youssef, 547 F.3d 1090 (9th Cir. Nov. 5, 2008) (federal conviction for violation of 18 U.S.C. 1015(a), making a false statement in an immigration document, does not require the false statement to be material; even though prior conviction qualified for the petty offense exception to inadmissibility, and was therefore immaterial to admission, the noncitizen was required to disclose the fact of conviction).

CRIMES OF MORAL TURPITUDE - PETTY OFFENSE EXCEPTION - MAXIMUM SENTENCE REQUIREMENT - STATUTORY MAXIMUM NOT GUIDELINES MAXIMUM
Mendez-Mendez v. Mukasey, 525 F.3d 828 (9th Cir. May 8, 2008) (because statutory maximum term of imprisonment for bribery conviction was fifteen years, petty offense exception does not apply; plain language of INA 212(a)(2)(A)(ii)(II) indicates that "maximum penalty possible refers to statutory maximum, not the maximum guideline sentence to which noncitizen was exposed).

Tenth Circuit

RELIEF " NON-LPR CANCELLATION OF REMOVAL " PETTY OFFENSE EXCEPTION
Lucio-Rayos v. Sessions, 875 F.3d 573 (10th Cir. Nov. 14, 2017)(assumed moral turpitude conviction disqualified respondent from eligibility for discretionary cancellation of removal, and qualifying for the petty offense exception to moral turpitude inadmissibility would not change this result); following In re Cortez Canales, 25 I&N Dec. 301, 303-04 (BIA 2010); see also Mancilla-Delafuente v. Lynch, 804 F.3d 1262, 1265-66 (9th Cir. 2015); Hernandez v. Holder, 783 F.3d 189, 191-96 (4th Cir. 2015).