Criminal Defense of Immigrants


§ 20.31 D. The Political Offense Exception

Skip to § 20.

For more text, click "Next Page>"

The statute defining this ground of inadmissibility specifically provides that if the conviction is for a “purely political offense,” the crime of moral turpitude does not trigger inadmissibility.[211]  The BIA has held that an offense must be determined to have been completely or totally political in view of the totality of the circumstances.[212]  Courts may be reluctant to apply the political offense exception to foreign convictions for fear of international repercussions, and will defer to the Attorney General in determining whether an offense falls within this exception.[213]  Note that this exception does not apply to deportability on account of one or more convictions of a crime of moral turpitude, only to inadmissibility.


                The BIA has recently considered the definition of “purely political offense,” noting three possible definitions:


                One sort, which the respondent essentially contends is applicable to his conviction, involves baseless, trumped-up, or fabricated charges. There is no dispute among the parties that a fabricated or trumped-up charge may be a “purely political offense,” as indeed we held in Matter of B-, supra. A second type of “political” offense, not involved here, is one that consists of an act or acts directed against the State, such as treason, sedition, or espionage, that contains none of the elements of ordinary crimes. The third kind of “political” crime, again not at issue here and denominated under extradition law as a “relative” political offense, is one in which a common offense such as murder, assault, or theft is so connected with a political act that the offense is regarded as “political.” See 31A Am. Jur. 2d Extradition § 44 (2002); see also Quinn v. Robinson, 783 F.2d 776, 793-94 (9th Cir. 1986).[214]


However, for purposes of this decision, the BIA looked solely to the first definition given, and did not determine whether the other two definitions have any part in defining a “purely political offense” for purposes of INA § 212(a)(2)(A)(I)(i).


Prior decisions have held that in order for an offense to constitute a “purely political offense,” it must have been committed in concert with other persons (or a common movement) in an effort to accomplish a political purpose.[215]  The benefits of this exception are not available to one who commits the act individually, independently, or without being connected with anyone else.[216]


Black’s Law Dictionary, p. 1376, citing 2 Stephen’s Criminal Law 70, states that, “as a designation of a class of crimes usually excepted from extradition treaties,” the term political offenses “denotes crimes which are incidental to and form a part of political disturbances; but it might also be understood to include offenses consisting in an attack upon the political order of things established in the country where committed, and even to include offenses committed to obtain any political object.”[217]


[T]his country  . . . recognize[s] that even traditional crimes may involve no moral turpitude, within the purview of American immigration laws, when their commission was “incidental to the . . . flight from great persecution or oppression by nations . . . against large racial, religious or political minorities.”[218]


The Foreign Affairs Manual provides:


Where there is any indication that the offense for which the alien was convicted was of a political nature, or prosecution therefor was politically motivated, the consular officer shall request CA/VO/L/A to make a determination.  The imposition of a cruel or unusual punishment, or of a punishment which is clearly disproportionate to the offense, as well as cases falling within the provisions of 22 C.F.R. 40.21(a)(6), raise the question as to whether the conviction was for a purely political reason.  In the following cases the aliens concerned were considered to have been convicted of “purely political offenses” within the meaning of INA 212(a)(2)(A)(i)(I) and (2)(B):


(1)   An alien who was convicted by a South African court of robbery and assault because the alien helped overpower the guards and forcefully took possession of a government car in attempting to escape from a civilian internment camp.

(2)   An alien convicted by a Netherlands court of having executed false ration coupons to benefit the underground during World War II.

(3)   An alien who was a member of the German SS and was sentenced by a Soviet court to nine years for theft of some paper bags.

(4)   An alien convicted by a Danish court of forging a receipt for a Danish passport and forging an official request for air transportation solely for the purpose of escaping from an Iron Curtain country.

(5)   The Attorney General ruled in 1938 that a violation of Article 156 of the German Criminal Code regarding false statements under oath, which would normally be held to involve moral turpitude, did not involve moral turpitude because in effect the false statement was made by a Jew as part of resistance against the economic measures taken against the Jews in Germany.  (39 Op. A.G. 215).[219]


The FAM went on to state: “The mere fact that an alien is or was a member of a racial, religious, or political minority shall not be considered as sufficient in itself to warrant a conclusion that the crime for which the alien was convicted was purely a political offense.”[220]


                The political offense exception also applies to the aggravated felony crime of violence definition.[221]


[211] INA § § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I); Matter of B, 1 I. & N. Dec. 47 (AG 1941).

[212] Matter of O’Cealleagh, 23 I. & N. Dec. 976 (BIA 2006).

[213] Efe v. Ashcroft, 293 F.3d 899, 905 n.5 (5th Cir. June 20, 2002) (“A decision by the Attorney General to deem certain violent offenses committed in another country as political in nature, and to allow the perpetrators to remain in the United States, may affect our relations with that country or its neighbors. The judiciary is not well positioned to shoulder primary responsibility for assessing the likelihood and importance of such diplomatic repercussions.  INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999).”).

[214] Matter of O’Cealleagh, 23 I. & N. Dec. 976, 980 (BIA 2006).

[215] A common example would be a conviction arising out of participation in a political protest, e.g., a conviction of disorderly conduct or resisting arrest.

[216] Matter of K, 4 I. & N. Dec. 108 (BIA 1950).

[217] Matter of K, 4 I. & N. Dec. 108, 110-111 (BIA 1950).

[218] Sovich v. Esperdy, 319 F.2d 21, 28 (2d Cir. 1963), quoting 39 Op.Atty.Gen. 215-227.

[219] 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a) N10(a).

[220] 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a) N10(b).

[221] INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F).  See § 19.50, supra.



United States v. Rodriquez, 553 U.S. ___ (May 19, 2008) (for purposes of considering whether a state drug-trafficking offense, for which a ten-year recidivism-based sentence was imposed, qualifies as a predicate offense under the Armed Career Criminal Act, 18 U.S.C. 924(e)), the federal sentencing court must consider the recidivist sentence enhancement in determining the sentence imposed), disagreeing with United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc) (petty theft conviction could not qualify as an aggravated felony because the maximum possible sentence for a violation without statutory recidivist enhancements was six months).


Matter of EA, 26 I&N Dec. 1 (BIA Sept. 11, 2012) (an IJ should balance the seriousness of the criminal acts against the political aspect of the conduct to determine whether the criminal aspect of the acts outweighs their political nature).
  Counsel can argue that multiple CMT convictions arising out of a single criminal act may still fall within the petty offense exception to inadmissibility:

  Unlike the multiple CMT ground of deportation, INA 237(a)(2)(A)(ii), there is no explicit exception for when a noncitizens CMTs arise "out of a single scheme of criminal misconduct." Counsel can argue, however, that a second CMT committed as part of the same criminal act does not disqualify a person from the Petty Offense Exception. Matter of Medina-Lopez, 10 I. & N. Dec. 7 (BIA 1962)

  In criminal law, "defendants may be charged with and convicted of multiple offenses based on a single act or indivisible course of conduct." People v. Pearson, 42 Cal.3d 351, 228 Cal.Rptr. 509 (1986).Where the charges arising from a single act or an indivisible course of conduct involve different offenses entailing different elements of proof, a defendant may be properly convicted of both. People v. Rocha, 80 Cal.App.3d 972, 975, 146 Cal.Rptr. 81 (1978).On the other hand, "multiple convictions may not be based on necessarily included offenses." People v. Pearson, supra, 42 Cal.3d at 355.In some cases, the multiple convictions are so closely related that only a single sentence may be imposed. United States v. Palafox, 764 F.2d 558 (9th Cir. 1985).

  A defendant can, for example, be convicted of possession of a sawed-off shotgun and possession of a firearm by an ex-felon, in part because each of the statutes of conviction advance a different legislative interest, which would be frustrated if the accusatory pleadings test prohibited conviction of both. People v. Scheidt, 231 Cal.App.3d 162, 170-171, 282 Cal.Rptr. 228 (1991). In other cases, as with theft and burglary with intent to commit theft, the charges arise out of two components of a single criminal undertaking. Prince v. United States, 352 U.S. 322 (1957).

  The petty offense exception to inadmissibility "shall not apply to an alien who has committed only one crime." The term "commit" means "to perform as an act." BLACKS LAW DICTIONARY 273 (6th ed. 1990). Thus counsel can argue that where a commission of a single act arises in multiple criminal convictions, the noncitizen should not be disqualified from the petty offense exception to inadmissibility.

  The BIA would appear to agree. In Matter of Medina-Lopez, 10 I. & N. Dec. 7 (BIA 1962), the Board found that a noncitizen convicted in Mexico with robbery, and assault with intent to commit robbery, was eligible for the petty offense exception to inadmissibility. Counsel argued that, for purposes of the petty offense exception, the two convictions arose out of the same act, and the BIA should only consider the most serious aspect of that single act. The Board found that:

  The court chose to punish the respondent for two separate offenses - robo, the taking of property, and lesiones, an assault. However, this record clearly establishes that the taking of property and the assault arose out of one incident. The assault was for the purpose of taking property from the person of another. It appears to us that the respondents convictions arising as they do out of a single scheme of conduct amount to what in the District of Columbia Code is described as robbery . . . .

  Id. at 9 (emphasis added). Although the issue in Medina-Lopez concerned an interpretation of foreign law under United States standards, the same reasoning should apply to domestic convictions as well.

  Although a prosecutor in one state may decide to charge a person who commits the act of shoplifting with theft in one case, a different prosecutor in the same or another state could chose to charge the same act as both theft and burglary with intent to commit theft. Regardless of how the act was charged, only a single act that was committed.

  Thus, to interpret the petty offense exception to depend upon how the prosecution chose to charge the offense would be to allow the vagaries of state law to control, contrary to the interest in national uniformity in the application of federal immigration law. Cf. Gerbier v. Holmes, 280 F.3d 297, 312 (3d Cir.2002) (allowing the question of whether first time simple possession of a controlled substance is an aggravated felony to depend upon differing laws of the states would go against the interests of national uniformity in the application of federal immigration law).

Fifth Circuit

United States v. Hope, 545 F.3d 293 (5th Cir. Oct. 8, 2008) (defendant's possession of the same gun when arrested and on the previous day in a robbery, absent evidence that the possession was interrupted, did not constitute two separate violations of the felon-in-possession statute).