Petty Offense Exception to CIMT's

Under INA §212(a)(2)(A)(i)(I), a foreign national who has committed a crime involving moral turpitude (CIMT) is inadmissible. In order to overcome this inadmissibility, the foreign national must obtain either a non-immigrant waiver under INA §212(d)(3) or an immigrant waiver under INA §212(h).

However, if the foreign national’s sole conviction for a CIMT falls under the enumerated ‘Petty Offense Exception’ found under INA §212(a)(2)(A)(ii)(II), the foreign national will not be inadmissible and thus, will not require a waiver to re-enter the United States.

The Petty Offense Exception applies when: 1. the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year; and 2. 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).

If the Petty Offense Exception applies, the foreign national needs to establish their eligibility for such exception to the satisfaction of the Consular Officer and/or U.S. Customs & Border Protection Officer. In order to meet this burden, the foreign national should have certified copies of the disposition, as well as copies of the relevant statute and punishment range, available for the Officer’s review. As a reminder, the relevant statute and punishment range should be the version that was applicable when the foreign national was convicted.

If you would like to determine whether your conviction may fall under the Petty Offense Exception, please contact our office to schedule a consultation - we can determine whether your conviction is a 'conviction' for immigration purposes, whether the conviction truly meets the definition of a CIMT, and whether the Petty Offense Exception applies.

Port of Entry Parole Issued to Canadian Citizen To Wind Down Affairs After Unexpectedly Learning of Inadmissibility

Last week, our office assisted our client, a Canadian citizen, in obtaining a port of entry parole so that she could return to the U.S. for a brief period after unexpectedly learning of her inadmissibility. Our client had been spending the earlier part of the year at her vacation home in California so she could enjoy the warmer weather in California and had brought down her car, her dogs and enough household goods to cover her six month anticipated stay in the U.S. However, in order to attend to an urgent business matter in Canada, she planned a quick trip to Canada and asked her neighbor to check in on her dogs and home. However, on her attempted return to California, she was denied entry by U.S. Customs & Border Protection officers based on two criminal convictions in Canada from the mid-1980's (shoplifting).

Our client, who had been traveling to the U.S. for the past twenty plus without incident, was frankly shocked at learning of her inadmissibility and extremely stressed about how to retrieve her dogs, car and belongings from the U.S. while she sorted out this issue. After our client contacted our office, we were able to explain that her two criminal convictions from the mid-1980's rendered her inadmissible to the U.S. because they were considered to be crimes of moral turpitude. Had she only had one conviction, it would have likely fallen under the petty offense exception found at INA §212(a)(2)(A)(ii)(II), and she wouldn't have had any issues and could have continued to travel to the U.S. without a waiver.

However, since she had two such convictions, she was inadmissible to the U.S. under INA §212(a)(2)(A)(i)(I). In order to overcome the inadmissibility and return to the U.S. as a visitor, our client needs to apply for a waiver - specifically, our client needs to submit Form I-192, Application for Advance Permission to Enter as Nonimmigrant. We explained to our client that while we could assist her with the waiver application (for which she was a good candidate given how old the convictions were) the Admissibility Review Office (ARO), which reviews these applications worldwide, was currently taking 4-6 months to adjudicate these types of petitions.

In order to solve her more immediate need to retrieve her dogs, car and belongings, we also reached out to our local port of entry to apply for a port of entry parole to wind down her affairs in California. After submitting a detailed packet to CBP explaining our clients urgent need for a port of entry parole, Senior Partner William Reich accompanied our client to the port of entry to apply for parole, where she was approved for a single-entry parole valid for twenty-one (21) days.