Tooby's California Post-Conviction Relief for Immigrants

If an immigrant receives a sentence imposed in excess of six months, s/he is disqualified from receiving the Petty Offense Exception to inadmissibility.[19]  This exception is limited to excusing inadmissibility based on one conviction of a crime of moral turpitude (CMT).[20]  If counsel can vacate the sentence, or reduce it to six months or less, the noncitizen will qualify for the Petty Offense Exception, and can avoid inadmissibility, and become eligible to be admitted to United States, to adjust status to Lawful Permanent Resident, and to qualify for Cancellation of Removal for Lawful Permanent Residents, Cancellation for Non-Permanent Residents, Naturalization, Registry, Suspension of Deportation, relief under the Violence Against Women Act, Voluntary Departure at the end of removal proceedings, establish Good Moral Character (required to qualify for many immigration benefits), and avoid Mandatory Detention.[21]  See § 8.12, infra, for an explanation of these specific immigration effects.

Under the Petty Offense Exception, a noncitizen is automatically not inadmissible if:

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

(b)     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

(c)     the offense carries a maximum possible sentence of one year or less.[22]  

Thus, a person convicted of a misdemeanor first-offense CMT with a sentence of six months or less is not inadmissible under the moral turpitude ground, but the person is inadmissible under this ground if the sentence formally imposed exceeds six months in custody.

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

[20] 8 U.S.C. § 1182(a)(2)(A)(i).

[21] LaFarga v. INS, 170 F.3d 1213, 1215 (9th Cir. 1999) (state court designation of a wobbler offense as a misdemeanor binding on BIA for purpose of applying petty offense exception); Garcia-Lopez v. Ashcroft, 334 F.3d 840 (9th Cir. June 26, 2003) (immigration court must give consideration to state court reduction of California ‘wobbler’ offense from a felony to a misdemeanor offense; reductions of sentences by state courts are qualitatively different from state expungements, since in modifying a sentence, the state court is determining the nature of the conviction pursuant to state law).

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