Tooby's California Post-Conviction Relief for Immigrants

 

The Petty Offense Exception has broad effects in a number of different immigration contexts. 

 

·  Admissibility, or Ability to Enter the United States.  The major and most direct effect of a conviction of a crime of moral turpitude is on the noncitizen’s admissibility.  If the immigrant leaves the United States, and wants to return, s/he must be admissible to do so (even if s/he has Lawful Permanent Resident status).  With a CMT conviction and a sentence imposed in excess of six months, the immigrant will be excludable at the border, and cannot qualify for the Petty Offense Exception, unless the sentence imposed is reduced to six months or less. [23]

 

·  Cancellation of Removal for Lawful Permanent Residents.  A noncitizen who has (among other requirements) seven years of continuous lawful residence in the United States, prior to the commission of an offense that triggers removal or inadmissibility, can remain in the United States as a Lawful Permanent Resident even though s/he may be deportable for crimes if an immigration judge rules in his or her favor as an exercise of discretion.  The accrual of this period of continuous residence ends upon the commission of an offense listed in 8 U.S.C. § 1182(a)(2) that renders the noncitizen inadmissible or deportable for crimes.  A conviction of a crime of moral turpitude is listed in § 1182(a)(2)(A)(i)(I) as triggering inadmissibility.  It does not, however, trigger inadmissibility if the immigrant qualifies for the Petty Offense Exception to inadmissibility.[24]  Reduction of the sentence imposed from a sentence in excess of six months to a sentence of six months or less will enable the noncitizen to qualify for the actual-punishment requirement of the Petty Offense Exception, and thereby avoid inadmissibility for crimes and disqualification from this form of Cancellation of Removal.

 

·  Cancellation of Removal for Non-Lawful Permanent Residents.  A noncitizen who is inadmissible for crimes is barred from showing good moral character, which is a requirement for obtaining many forms of immigration benefit.[25]  A noncitizen must show good moral character to qualify for Cancellation of Removal for Non-Lawful Permanent Residents.[26]  Moreover, the immigrant must not have been convicted of an offense triggering inadmissibility under 8 U.S.C. § 1182(a)(2).[27]  Reduction of the sentence imposed from a sentence in excess of six months to a sentence of six months or less can assist the noncitizen to qualify for the Petty Offense Exception, and thereby avoid inadmissibility for crimes and avoid the inadmissibility bar to showing Good Moral Character.

 

·  Good Moral Character. A noncitizen who is inadmissible for crimes is barred from showing good moral character, which is a requirement for obtaining many forms of immigration benefit.[28]

 

·  Lawful Permanent Resident Status.  In order to adjust status to Lawful Permanent Resident, an immigrant must also be “admissible.”  A single conviction for a crime of moral turpitude will constitute a ground of inadmissibility.[29]  If the sentence imposed can be reduced to six months or less, the reduction will assist the immigrant to qualify for the Petty Offense Exception to inadmissibility.

 

·  Mandatory Detention.  The INA requires the Attorney General to detain any noncitizen who is inadmissible for crimes.[30]  Reduction of the sentence imposed to six months or less will enable the noncitizen to qualify for the Petty Offense Exception, avoid inadmissibility, and thus avoid mandatory detention.

 

·  Naturalization.  In order to obtain naturalized United States citizenship, a Lawful Permanent Resident must show Good Moral Character for a certain period of time, which requires avoiding inadmissibility.[31]  Reduction of the sentence imposed from a sentence greater than six months, to a sentence of six months or less, can assist the noncitizen to qualify for the Petty Offense Exception, and thereby avoid inadmissibility for crimes and disqualification from naturalization.

 

·  Registry.  Registry is a form of relief enabling an immigrant who has been present in the United States since 1972 to obtain Lawful Permanent Resident status.  This form of relief requires the noncitizen to show Good Moral Character for a certain period of time.[32]  Reduction of the sentence imposed from a sentence greater than six months, to a sentence of six months or less, can assist the noncitizen to qualify for the Petty Offense Exception, and thereby avoid inadmissibility for crimes and disqualification from Registry.

 

·  Suspension of Deportation.  The general form of relief now known as Cancellation of Removal for Non-Lawful Permanent Residents was formerly known as “Suspension of Deportation.”  To qualify for this form of relief, it was necessary to show Good Moral Character for a certain period of time.[33]  Reduction of the sentence imposed from a sentence greater than six months, to a sentence of six months or less, can assist the noncitizen to qualify for the Petty Offense Exception, and thereby avoid inadmissibility for crimes and disqualification from Suspension of Deportation.

 

·  Violence Against Women Act.  VAWA provides a special form of adjustment of status, and a special form of cancellation of removal, for noncitizens who have been the victim of spousal abuse perpetrated by a person who is a citizen or Lawful Permanent Resident of the United States.[34]  These forms of relief require the applicant to show Good Moral Character for a certain period of time. Reduction of the sentence imposed from a sentence greater than six months, to a sentence of six months or less, can assist the noncitizen to qualify for the Petty Offense Exception, and thereby avoid inadmissibility for crimes and disqualification from these forms of relief.

 

·  Voluntary Departure at End of Removal Proceedings.  A noncitizen may qualify for Voluntary Departure, at the end of removal proceedings, if s/he can show Good Moral Character for a period of five years.[35]  Reduction of the sentence imposed from a sentence greater than six months, to a sentence of six months or less, can assist the noncitizen to qualify for the Petty Offense Exception, and thereby avoid inadmissibility for crimes and disqualification from this form of relief.

[23] 8 U.S.C. § 1182(a)(2)(A)(i)(II).

[24] 8 U.S.C. § 1182(a)(2)(A)(ii)(II).

[25] 8 U.S.C. § 1101(f)(3).

[26] 8 U.S.C. § 1229b(b)(1)(B).

[27] 8 U.S.C. § 1229b(b)(1)(C).

[28] 8 U.S.C. § 1101(f)(3).

[29] 8 U.S.C. § 1182(a)(2)(i)(I).

[30] 8 U.S.C. § 1226(c)(1)(A)(who is “inadmissible by reason of having committed any offense covered in section 1182(a)(2) . . . .”).

[31] K. Brady, § 11.20.

[32] INA § 249, 8 U.S.C. § 1259.

[33] INA § 244(a)(1); 8 U.S.C. § 1254(a)(1).

[34] This relief was enacted as part of the 1994 Violent Crime Control and Law Enforcement Act, Pub. L. 103-322, § 40701 (September 13, 1994).  See also Violence Against Women Act of 2000 (effective October 28, 2000).  See K. Brady, § 11.19(c).

[35] INA § 240B(b)(2); 8 U.S.C. § 1229c(b)(2).