When the Petty Offense Exception Excuses a Crime of Moral Turpitude

Based on the potential penalty and prison sentence, certain crimes considered "petty," and therefore not crimes of moral turpitude (CMTs).

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An immigrant who has committed a crime involving moral turpitude can be deported from or denied entry into the United States. Not every crime is considered morally wrong, however. For information on what crimes are said to involve moral turpitude, see Nolo’s article, “What’s a Crime of Moral Turpitude According to U.S. Immigration Law?

Even if you have committed a crime of moral turpitude, you may still be eligible for a visa if it qualifies as a “petty offense.” (This comes from Section 212(a)(2)(A)(ii)(II) of the Immigration and Nationality Act or I.N.A.) If you can show that your crime was a petty offense, you will not need to seek a waiver — that is, request special legal forgiveness -- for that offense.

Determining Whether Your Crime Was a “Petty Offense”

A crime involving moral turpitude is considered a “petty offense” if:

  • the maximum penalty that you could have received for committing the offense is exactly one year or less, AND
  • you personally were sentenced to no more than six months imprisonment, regardless of the amount of time you actually served.

Don’t make the mistake that some people do and assume that a misdemeanor will likely qualify as a petty offense but a felony will not. No matter how the crime is named, you have to use the two-part test described above. Some felonies may actually fit within the petty offense exception, while many misdemeanors will not.

State laws vary as to how they name and assign maximum sentences to crimes, so whether your offense qualifies as “petty” will depend very much on state law.

For example, in Colorado, theft of an item worth less than $500 is a class 2 misdemeanor, punishable by up to one year in jail. If you were convicted of this offense and only had to pay a fine, you would meet the petty offense exception. Likewise, if you were sentenced to five months in jail, you would meet the exception. However, if you were sentenced to seven months, you would not meet the petty offense exception, even if you only served five months of your sentence.

How to Show That the Petty Offense Exception Applies

In order to show that your offense was a petty one, you will need to provide the U.S. government official who is ruling on your immigration application with:

  • a certified disposition from the court that convicted you, and
  • a copy of the statute under which you were convicted, including the maximum possible sentence.

Procedures for obtaining a certified record of your conviction vary from court to court. You or your attorney should be able to get the records you need by contacting the clerk of the court in which you were convicted.

You should also provide the language of the statute under which you were convicted. You can find most statutes on state websites or at the public library. Many state and municipal statutes have separate criminal and sentencing provisions, and you will need to make sure to include both so that you can prove that the maximum sentence fits within the exception.

For example, if you were convicted of theft in Colorado as discussed above, you would want to submit both:

  1. the theft statute describing the offense, and
  2. the sentencing provisions showing the maximum penalty for a class 2 misdemeanor.

Situations Where the Petty Offense Exception Won’t Help

The petty offense exception applies only to crimes involving moral turpitude. Many offenses, including controlled substance violations, cannot be excused by the petty offense exception.

It is also important to understand that the petty offense exception can only apply to one offense. If you have committed two or more crimes involving moral turpitude, you will not be able to benefit from the petty offense exception regardless of the maximum sentence and amount of time you served.

The rules are a little bit different if you are applying for cancellation of removal for nonpermanent residents (for more information on this form of relief, see Nolo’s article, “Green Card Through Cancellation of Removal (Non-LPR): Who Qualifies?”) or if you are defending against having your green card revoked.

This is because the criminal grounds of deportability (detailed in section 237(a)(2) of the I.N.A.) apply in such cases, while they do not apply to most individuals seeking visas. Due to slightly different wording in this section of the statute, you may still be deportable unless the maximum possible penalty for your offense was less than one year imprisonment, rather than one year or under. Referring back to our earlier example, a person convicted of a second degree misdemeanor with a maximum sentence of one year would be ineligible for cancellation of removal, even though he or she could still benefit from the petty offense exception when applying for a visa or naturalization.

The petty offense exception provides a way for immigrants convicted of certain crimes involving moral turpitude to remain eligible for admission to the United States. Like all criminal issues in immigration law, the petty offense exception is complicated and its application depends on your crime, the eligibility requirements for the immigration benefit you are seeking, and other details of your case. If you have a criminal issue, it is best to see an experienced immigration attorney to help you determine how to proceed.

by: Lauren Howard

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