Tooby's California Post-Conviction Relief for Immigrants

(A)

In General.  Under immigration law, a noncitizen convicted of a felony (i.e., an offense carrying a maximum sentence greater than one year in custody) is disqualified from the “Petty Offense Exception” to inadmissibility.[33]  Reduction of the level of the offense from a felony to a misdemeanor will reduce the maximum potential sentence to one year, thus enabling the immigrant to qualify for the Petty Offense Exception to inadmissibility.[34]

            This exception is limited to excusing inadmissibility based on one conviction of an offense involving moral turpitude.[35]  See § 9.5, supra.  Thus, a person convicted of a misdemeanor first-offense crime of moral turpitude with a sentence of six months or less is not inadmissible under the moral turpitude ground because the maximum sentence for a misdemeanor conviction is one year.[36] 

[33] See INA § 212(a)(2)(A)(ii); 8 U.S.C. § 1182(a)(2)(A)(ii).

[34] 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).

[35] 8 U.S.C. § 1182(a)(2)(A)(i).

[36] See Penal Code § 17(a).