Criminal Defense of Immigrants

(E)  Effective Date.  The current definition[192] of the Petty Offense Exception applies only to individuals entering the United States on or after June 1, 1991.[193]  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.[194]

                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.[195]  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 § 24.6, infra.

[192] The Petty Offense Exception was most recently amended by § 601 of the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 (Nov. 29, 1990), which added the requirement that the offense of conviction not be punishable by a maximum possible sentence in excess of one year confinement.

[193] Immigration Act of 1990, Pub. L. No. 101-649, § 601(e)(1), 104 Stat. 4978 (Nov. 29, 1990).

[194] The previous version of the “Petty Offense Exception” was defined by the Omnibus Crime Control Act of October 12, 1984, Pub. L. No. 98-473, 98 Stat. 1837, effective as to convictions occurring after November 1, 1987.  The original version of the “Petty Offense Exception” had been enacted by the Act of Sept. 3, 1954, as amended by the Act of Sept. 26, 1961, Pub. L. No. 87-301, 75 Stat. 655.  The BIA had construed the original Petty Offense Exception to be retroactive, as well as prospective. Matter of H, 6 I. & N. Dec. 738 (BIA 1955).

[195] INA § 237(a)(1)(A), 8 U.S.C. § 1227(a)(1)(A).  See § 17.11, supra.