The Petty Offense Exception

Question: I committed a relatively small crime. Am I now not admissible to the U.S.?

Answer: It will depend on what exactly you committed. However, there is what is known as the petty offense exception.

Question: What is the petty offense exemption?

Answer: An alien (whether or not a minor) is not inadmissible if the CIMT is for a petty offense. A conviction (or admission) is considered a petty offense: “if the maximum penalty possible for the crime of which the alien was convicted … did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

Question: What if there is an undeterminate probationary period?

Answer: An undesignated probationary sentence, unlike an indeterminate sentence, is not considered a felony punishable by more than one year imprisonment, where the court has designated it a misdemeanor punishable by a maximum term of imprisonment of 6 months.

Question: What if the crime is a ‘wobbler’?

Answer: Cal. Penal Code §487.2 is a “wobbler” statute and where judge designates it as a misdemeanor, the BIA is bound by that determination for purposes of the petty offense exception. You need to look at each particular State.

Question: What if I had a drug conviction?

Answer: Department of State takes the position that the petty offense exception is not applicable to drug cases.

Question: What if I committed or admitted to more than 1 petty offense?

Answer: The petty offense exception is not applicable if more than one CIMT offense has been committed or admitted.

Question: What if I committed more than 1 crime, but only 1 is a CIMT?

Answer: Where there was a second CIMT, the “stop-time” rule applied because the petty offense exception only applies to the first CIMT. However, it remains effective where one of the 2 offenses was not for a CIMT. For example, an applicant who was convicted of a petty offense that was a CIMT and a second offense (battery) that was not a CIMT, he is not barred from cancellation, because he has not been convicted of an offense under §212(a)(2). It also remains effective for purposes of cancellation, where the second CIMT was not committed until after the residency requirement had accrued. The “stop-time” rule did not bar cancellation where first conviction was a petty offense and second conviction occurred after respondent accrued 7 years of continuous residence.

Question: What if I admit the facts of a particular crime?

Answer: If there was no conviction but the person admits facts, the petty offense exception applies and the alien is not inadmissible so long as the maximum sentence that could have been imposed does not exceed one year.

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Immigration Representation needed in Chicago

An article in the Chicago Reporter states that of the nearly 1,500 cases of women with children seen in the Chicago Immigration Court this past year, less than 14% were represented by a lawyer, a figure that is less than half the national rate.

Congress stops playing games and passes a clean Bill to fund DHS

Last week, the Senate passed a DHS appropriations measure that did not include the House amendments that would block DAPA implementation and DACA expansion by a vote of 68-31. Today, in a surprising move, Speaker Boehner allowed for the Senate-passed version of the DHS funding bill to be voted on in the House. The bill passed with bipartisan support in the House, 257-167 (with 75 Republicans joining 182 Democrats), and will now be sent to President Obama’s desk for his signature. The bill will fund DHS through September 2015. The bill that passed does not include language that would prohibit the implementation of the President’s November 2014 executive actions on immigration.

Court Holds Virginia Grand Larceny Conviction Is Not an Aggravated Felony

  1. The Fourth Circuit reversed and remanded with instructions to vacate the removal order, finding that the modified categorical approach did not apply since use of the word “or” in the definition of the crime did not automatically render the crime divisible. Thus, the court applied the categorical approach and found that the petitioner’s conviction under Va. Code Ann. §18.2-95 was not an aggravated felony theft offense.

DHS Releases End of Year Statistics for FY2014

DHS released enforcement statistics for FY2014, which include reports from ICE and CBP. In FY2014, ICE removed or returned 315,943 individuals, 213,719 of whom were apprehended while, or shortly after, attempting to illegally enter the U.S., and 102,224 of whom were apprehended in the interior of the U.S. CBP made 486,651 apprehensions in FY2014, compared to 420,789 in FY2013. Both apprehension and removal numbers were influenced by the 68% increase in individuals migrating from countries other than Mexico, predominately from Central America.

Huffington Post: Judge Seems Skeptical Of Joe Arpaio’s Immigration Lawsuit

The Huffington Post reports that yesterday, U.S. District Judge Beryl Howell was skeptical of a lawsuit filed by Sheriff Joe Arpaio over the constitutionality of the President’s executive actions on immigration. In the first hearing in the case, Judge Howell questioned whether Arpaio had standing to bring the case and whether he could show a concrete injury from the new policy. The judge also indicated that she was not entirely convinced the courts should weigh in on the executive actions. Read this story and more in AILA’s daily immigration news clips.

AAO Finds CSC Overlooked Evidence

The AAO sustained the appeal of an L-1A petition, finding that the beneficiary will be employed in a managerial capacity in his role as senior technical manager in transceiver engineering and that the beneficiary will assume the same position in the U.S. that he currently holds abroad. Courtesy of Clark Trevor.

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