Elements of the Petty Offense Exception

 

Under the Petty Offense Exception, a noncitizen is automatically not inadmissible, on account of a conviction or admission of a crime involving moral turpitude, if all three requirements are met:[1]

• s/he has committed only one crime involving moral turpitude; and

• s/he “was not sentenced to a term of imprisonment in excess of six months (regardless of the extent to which the sentence was ultimately executed)”; and

• the offense of conviction carries a maximum possible sentence of one year or less.[2]

Thus, a person convicted of a misdemeanor first-offense CMT with a maximum of one year and a sentence imposed of six months or less is not inadmissible under the moral turpitude ground.  There is no discretionary component to this rule, and the noncitizen need not seek a waiver of any kind.  The statute creating this ground of inadmissibility simply has an exception.

 

 

 

Commission of Only One CMT

 

If the government shows, by a preponderance of the evidence, that a noncitizen has committed a second CMT, s/he will no longer be eligible for the petty offense exception to inadmissibility.[3]  Counsel should check the defendant’s entire criminal record to make sure that s/he has committed only one crime involving moral turpitude.  Commission of a second moral turpitude offense, even if the conviction was expunged, or charges were dismissed and there was no second conviction at all, will disqualify the defendant from eligibility for the Petty Offense Exception to inadmissibility for one CMT.[4]  On the other hand, previous non-turpitude convictions (e.g., driving under the influence, simple assault) will not disqualify the defendant from receiving the Petty Offense Exception.[5]

 

A court finding that a defendant violated a condition of probation does not constitute a conviction, and therefore does not establish that the defendant committed a second CMT for purposes of disqualifying him or her from the petty offense exception to inadmissibility.  However, if the conduct underlying the violation of probation constitutes CMT conduct (i.e., the commission of a second CMT), the conduct could disqualify a noncitizen from the Petty Offense Exception. Counsel should examine the petition filed in the criminal court alleging a violation of probation, and any attached documents such as police reports, and determine the nature of the conduct resulting in the allegation that the defendant violated probation.

 

The question of whether a noncitizen has committed a second CMT is a conduct-based factor, and the noncitizen is free to contest it as a factual matter.  The client could testify in removal proceedings s/he did not commit the second CMT, or call other witnesses to prove this.

 

For example, in the context of determining whether a noncitizen on supervised release from immigration detention had violated the term of the release requiring that he not “commit any crimes, “ the Ninth Circuit has held that a plea of no contest in criminal proceedings is insufficient evidence to show that the noncitizen has committed a crime, since a nolo contendere plea is not an admission of guilt to the underlying crime.[6]  Applied in this context, counsel can argue that a no contest plea cannot be used to establish that a noncitizen has “committed” another CMT, because even though there is a conviction, a no contest plea gives no proof that the offense of conviction was “committed” by the defendant. Other evidence, however, could be used to prove the conduct.

 

Counsel can also argue (similarly to the single scheme concept applied to the two or more CMT ground of deportability[7]) that a second CMT committed as part of the same criminal act does not disqualify a person from the Petty Offense Exception.[8]

 

 

 

Sentence Imposed of Six Months or Less

 

The immigrant will qualify for the Petty Offense Exception if s/he obtains a sentence imposed of six months or less, or suspended imposition of sentence with six months or less jail time as a condition of probation.  This requirement is violated by a court-ordered sentence in excess of six months, even if the person does not actually serve a sentence in excess of six months.[9]  Note, however, that the definition of “sentenced to imprisonment in excess of six months” is technical.  See, generally, Criminal Defense of Immigrants Chapter 10, supra.  For example, if a term of imprisonment in excess of six months is imposed, suspended execution of that sentence does not prevent the entire sentence (including the portion as to which execution was suspended) from being counted as a sentence for this purpose, disqualifying the noncitizen from eligibility for the Petty Offense Exception.[10]

 

The actual sentence imposed by the court determines whether the person meets this requirement for the Petty Offense Exception, even if the conviction occurred in a foreign country.[11]

 

A prison term “in excess of six months” is generally assumed to mean a term in excess of 180 days.  Counsel can argue, however, that a sentence imposed of 182 days would not disqualify a person from the Petty Theft Offense Exception, since a year consists of 365 days, and half a year (i.e., six months), would therefore consist of 182.5 days.[12]

 

 

 

Maximum Possible Sentence of One Year

 

The Petty Offense Exception also requires that the maximum sentence of imprisonment that could have been imposed be one year or less; a greater maximum is a disqualifier.[13]  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.[14]

 

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 or less in custody.[15]  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 Offense 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 in some states, such as Arizona and California,  to obtain reduction from a felony to a misdemeanor.[16]  Because the immigration authorities are bound by the most recent sentence ordered,[17] 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.[18]

 

 

 

Effective Date Issues

 

Effective Date of Current Petty Offense Exception

The current definition[19] of the Petty Offense Exception applies only to individuals entering the United States on or after June 1, 1991.[20]  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.[21]

 

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.[22]  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 § 3.6, infra.

 

Date of Determination of Admissibility  

 

The determination of whether the person qualifies for the Petty Offense Exception is made under the law as it existed at the time entry was sought, rather than under the law at the time the criminal acts or conviction occurred.[23]  A returning resident, however, who was paroled into the United States because of pending criminal charges, and who was later convicted of a crime involving moral turpitude, was excludable on the basis of the conviction.[24]  If a United States citizen was convicted of an offense that triggers inadmissibility, and then later expatriated, s/he was at that point excludable because s/he was a noncitizen with an excludable conviction at the time s/he attempted to enter the United States.[25]

 

 

 

Immigration Consequences of Petty Offense Exception

 

The primary use of the Petty Offense Exception is to excuse inadmissibility on account of a conviction of, or admission of committing, one crime involving moral turpitude.[26]  The exception does not excuse inadmissibility on account of a drug conviction.[27]  The statute defining the Petty Offense Exception does not distinguish between admissions (of a crime or of acts which would form the elements of a crime) and actual convictions and so defeats inadmissibility in both cases.  The Petty Offense Exception also defeats a ground of deportability in which the DHS charges the respondent with having been inadmissible at the time of admission for having committed a crime involving moral turpitude.[28]  In addition, a conviction coming within the Petty Offense Exception cannot be used to preclude a showing of Good Moral Character for purposes of voluntary departure.[29]  A conviction coming within the Petty Offense Exception also will not stop the clock for cancellation of removal applicants.[30]

 

 

 

Qualifying For the Petty Offense Exception

 

The immigrant generally has the burden of showing he or she qualifies for the Petty Offense Exception.  To do this, it is necessary to obtain certified copies of the criminal court records proving the offense of conviction and the sentence imposed by the court.  It is also necessary to obtain a copy of the criminal statute defining the crime and setting forth  the maximum possible sentence to confinement on the exact date on which the offense was committed.  Finally, it may be useful to obtain a copy of the criminal history to show that the person had never committed a second CMT offense at any time.

 

It may also be useful to obtain an opinion letter from an attorney showing how these records prove the client qualifies for the Petty Offense Exception.

 

 

 

Resources

 

For additional information, see N. Tooby, J. Rollin & J. Foster, Crimes of Moral Turpitude § 4.5 (2008); N. Tooby & J. Rollin, Criminal Defense of Immigrants § 20.29 (2007); Rosenberg, No Heartbreaker This Time: Petty Offense Rulings Favor Applicants, 8 Bender’s Imm. Bull. 960 (June 1, 2003).

 

 

 

[1] See Matter of Mendoza, 11 I. & N. Dec. 239, 241 (BIA 1965); Matter of H, 6 I. & N. Dec. 738, 738 (BIA 1955).
[2] See INA § 212(a)(2)(A) (II), 8 U.S.C. § 1182(a)(2)(A) (II).
[3] 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).
[4] In Matter of SR, 7 I. & N. Dec. 495 (BIA 1957), the BIA held that a noncitizen was disqualified from the Petty Offense Exception by reason of having committed a second crime of moral turpitude, even though the second conviction had been expunged and under applicable law at the time, the noncitizen therefore had only one CMT conviction.  The Board also held a person ineligible if the INS shows, by a preponderance of the evidence, that the person committed a second crime of moral turpitude, even if the person was never convicted.
[5] Matter of Garcia-Hernandez, 23 I. & N. Dec. 590 (BIA May 8, 2003) (commission of a second offense does not disqualify a noncitizen from the Petty Offense Exception to inadmissibility for one CMT conviction, under INA § 212(a)(2)(a)(ii)(ii), 8 U.S.C. § 1182(a)(2)(a)(ii)(ii) unless the second offense is also a CMT).  See also Reyes-Morales v. Gonzales, 435 F.3d 937 (8th Cir. Jan. 31, 2006) (since one of two convictions was not a crime of moral turpitude, and the other qualified for the petty offense exception to inadmissibility, respondent was not inadmissible for a CMT under INA § 212(a)(2), 8 U.S.C. § 1182(a)(2)); Cuadra v. Gonzales, 417 F.3d 947, 949 (8th Cir. 2005).
[6] United States v. Nguyen, 465 F.3d 1128 (9th Cir. Oct. 18, 2006) “[A] plea of nolo contendere ... is, first and foremost, not an admission of factual guilt. It merely allows the defendant so pleading to waive a trial and to authorize the court to treat him as if he were guilty. (citation omitted)). By entering a West plea a defendant [does] not admit the specific details about his conduct on the ... counts[to which] he pleaded guilty.  Carty v. Nelson, 426 F.3d 1064, 1068 (9th Cir.2005) (citing In re Alvernaz, 2 Cal.4th 924, 8 Cal.Rptr.2d 713, 830 P.2d 747); see also West, 91 Cal.Rptr. 385, 477 P.2d at 420 (explaining that by entering a plea agreement a defendant demonstrates that he ... is prepared to admit each of [the offense]'s elements” but not factual guilt). As a result, unless the record of the plea proceeding reflects that the defendant admitted to facts, a West plea, without more, does not establish the requisite factual predicate to support a sentence enhancement.” (internal quotation marks omited)).  See also United States v. Vidal, 504 F.3d 1072, 1087-1088 (9th Cir. Oct. 10, 2007) (“The California Supreme Court subsequently characterized a People v. West plea as a plea of nolo contendere that does not establish factual guilt. See In re Alvernaz, 2 Cal.4th 924, 8 Cal.Rptr.2d 713, 830 P.2d 747, 752 (1992) (describing a People v. West plea as a ‘plea of nolo contendere, not admitting a factual basis for the plea’”).
[7] See § 5.14, infra.
[8] 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.
[9] Matter of Castro, 19 I. & N. Dec. 692 (BIA 1988) (person could be excluded where sentence was suspended); Solis-Muela v. INS, 13 F.3d 372 (10th Cir. 1993) (followed Castro).
[10] See, e.g., Matter of M, 6 I. & N. Dec. 346 (BIA 1954); Matter of Castro, 19 I. & N. Dec. 692 (BIA 1988); INA § 101(a)(48)(B), 8 U.S.C. § 1101(a)(48)(B).
[11] See Matter of Scarpulla, 15 I. & N. Dec. 139 (BIA 1974); Matter of M, 8 I. & N. Dec. 453, 454-455 (BIA 1959).
[12] Thanks to Jacob Weisberg for this argument.
[13] 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).
[14] 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).
[15] 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)).
[16] 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).
[17] Matter of Cota-Vargas, 23 I. & N. Dec. 849 (BIA 2005)Matter of Song, 23 I &N Dec. 173 (BIA 2001).
[18] 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).
[19] 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.
[20] Immigration Act of 1990, Pub. L. No. 101-649, § 601(e)(1), 104 Stat. 4978 (Nov. 29, 1990).
[21] The previous version of the “Petty Offense Exception” was defined by the Omnibus Crime Control Act of Oct. 12, 1984, Pub. L. No. 98-473, 98 Stat. 1837, effective as to convictions occurring after Nov. 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).
[22] INA § 237(a)(1)(A), 8 U.S.C. § 1227(a)(1)(A).  See Criminal Defense of Immigrants § 17.11 (4th ed. 2007).
[23] Squires v. INS, 689 F.2d 1276 (6th Cir. 1982).
[24] Matter of K, 9 I. & N. Dec. 143 (AG 1961), upheld in Klapholz v. Esperdy, 201 F.Supp. 294 (S.D.N.Y. 1961), aff’d per curiam, 302 F.2d 928 (2d Cir.), cert. den., 371 U.S. 891 (1962).  Cf. Matter of Alvarez-Verduzco, 11 I. & N. Dec. 625 (BIA 1966); Matter of B, 2 I. & N. Dec. 172 (BIA 1944).
[25] Matter of S, 5 I. & N. Dec. 678 (BIA 1954).  Cf. Marks v. Esperdy, 315 F.2d 673 (2d Cir. 1963), aff’d, 377 U.S. 214 (1964).
[26] INA § 212(a)(2)(A)(ii)(II), 8 U.S.C. § 1182(a)(2)(A)(ii)(II).  See, e.g., Reyes-Morales v. Gonzales, 435 F.3d 937 (8th Cir. Jan. 31, 2006) (since one of two convictions was not a crime of moral turpitude, and the other qualified for the Petty Offense Exception to inadmissibility, respondent was not inadmissible for crimes under INA § 212(a)(2), 8 U.S.C. § 1182(a)(2), and therefore not disqualified from eligibility for NACARA special cancellation of removal under NACARA § 203), citing Cuadra v. Gonzales, 417 F.3d 947, 949 (8th Cir. 2005).
[27] Correspondence in Mar.-May, 1989, of Odom, Chief of Advisory Opinions Division, Department of State, reprinted in 66 Interpreter Releases 1042-43, 1052-55 (Sept. 18, 1989).  “The Immigration Act of 1990 appears to support that view.  INA § 212(a)(2)(A)(ii) refers to exceptions only for crimes involving moral turpitude.”  Ira J. Kurzban, Kurzban’s Immigration Law Sourcebook 52 (11th Ed., American Immigration Law Foundation, 2008).
[28] Matter of C, 6 I. & N. Dec. 331 (BIA 1954); Matter of H, 6 I. & N. Dec. 738  (BIA 1955).
[29] Matter of Urpi-Sancho, 13 I. & N. Dec. 641 (BIA 1970). See Immigration Law and Crimes, §§ 9:2 to 9:9.
[30] Matter of Deando-Romo, 23 I. & N. Dec. 597 (BIA May 8, 2003) (noncitizen convicted of two misdemeanor crimes involving moral turpitude not time-barred by INA § 240A(d)(1)(B), 8 U.S.C. § 1229b(d)(1)(B), since noncitizen’s first crime, which qualified for the Petty Offense Exception, did not render the noncitizen inadmissible; noncitizen was therefore able to accrue requisite 7 years of continuous residence before commission of second offense).