Post-Conviction Relief for Immigrants

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.[120]  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.[121]

This exception is limited to excusing inadmissibility based on one conviction of an offense involving moral turpitude.[122]  Under the Petty Offense Exception, a noncitizen is automatically not inadmissible if:

(1)     s/he has committed only one crime involving moral turpitude, ever; and

(2)     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

(3)     the offense carries a maximum possible sentence of one year or less.[123]  

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.[124]  This exception has broad effects in a number of different immigration contexts. 

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

[121] 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).

[122] INA § 212(a)(2)(A)(i), 8 U.S.C. § 1182(a)(2)(A)(i).

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

[124] See California Penal Code § 17(a).