The Petty Offense Exception to Section 212 of the Immigration and Nationality Act

Posted by Herman Dhade
Oct 25 2011

Immigration consequences can be steep for certain aliens who are convicted of committing crimes while in the United States. The commission of certain offenses, which may be classified as “crimes involving moral turpitude,” may render an alien inadmissible or removable from the U.S. See INA § 212(a)(2) and § 237.

A crime involving moral turpitude (CIMT) involves a crime that is “inherently base, vile or depraved, and contrary to the accepted rules of morality, and the duties owed between persons or society in general.” Matter of Olquin, 23 I & N Dec. 896 (BIA 2006). Though the consequences of being charged with a CIMT may be severe, aliens who commit certain offenses may still be eligible for admissibility into the U.S. Aliens whose offenses fall within what is referred to as the “petty offense exception,” will not be found inadmissible to the U.S.

Section 212(a)(2)(A)(ii)(II) of the Immigration and  Nationality Act, states that an alien who has only committed one crime shall not be found inadmissible 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.” See INA § 212(a)(2)(A)(ii)(II). Therefore, certain aliens may seek comfort in knowing that not every offense will subject that alien to being found inadmissible.

 

Aliens who only commit ONE crime that is considered a CIMT may fall within the petty offense exception. Further, for an alien to qualify under the petty offense exception and not be found inadmissible, the statute under which he/she was convicted must not impose a term of imprisonment of more than one year. In conjunction with that requirement, the alien’s sentence must not have been in excess of six months of imprisonment. Both these factors must be satisfied in order for the alien to qualify for the petty offense exception.

The petty offense exception allows certain qualifying aliens to avoid harsh immigration consequences. To determine whether your offense falls under the petty offense exception, feel free to contact our offices.

For specific questions regarding your case, please contact our office directly as we are unable to respond to all posts due to the large number of postings on this site.

For general information and discussion, you may post a comment below.  When posting a comment, all information will be posted live on the internet on this site.  For confidentiality purposes, you do not need to use your real name.

 

20 Responses

  1. Andres says:

    Hi,
    My wife was arrested last week for first shoplifting offense.
    In fact, she has been suffering from depression since she gave birth of our first child one month ago.
    We already hired a criminal lawyer who said that he will be able to get her case dismissed.
    By the way, she is a green card holder and she has been living in the U.S. since 2010.
    - Can she travel abroad and reenter into the U.S?
    - Can she apply for citizenship in the future?
    Thank you in advance

    • JUAN says:

      the same thing happen to me yesterday.my wife shoplifthing
      was she able to reenter the us?
      we had plans to go in a couple of weeks.
      please get back to me ASAP.

  2. elhoussaine says:

    make sure that your criminal lawyer is familiar with immigration law, and of course avoid those stupid legal aid because they work for the system. good luck

  3. Herman Dhade says:

    Thank you for your post. I recommend contacting us to see what we can do. The problem is that some dismissals are not recognized by US immigration officials. If the conviction is classified by immigration as one that can create problems, you could lose your permanent residence status or risk a future citizenship application.

  4. Sean says:

    I petitioned for my mother who lives overseas and she was found ineligible for a visa re: Section 212(a)(2)(A)(i)(I) because pf a prior conviction in 1989. She never served any time and only paid a fine for this offense. It was also expunged from her criminal record and she has never had any other offenses. They said she should file a waiver but i’m confused because it sounds a though this falls under the petty offense exception to Section 212. Could you offer your feedback on this matter?

    • Jonathan says:

      i have two questions:

      1- if her record was expunged how would they know she had committed an offense before?

      2- and can somebody -whose record was expuned – say that he has never committed an act against the law?

  5. Andre says:

    Ok I had @ marijuana charges, one in 2003 and the other 2008. i was suppose to get through with a k1 visa and i was denied , the officer side he will write to the homelands security and ask for a waiver. do you think i will get through with that visa?

  6. I seldom comment, however after reading some of the remarks
    here The Petty Offense Exception to Section 212 of the Immigration
    and Nationality Act

  7. ram says:

    sir,
    Isn´t this exception applies only for inadmissible aliens?
    However, as per INA 237, once convicted of CMT
    Within 5 years of admission to usa makes an alien deportable.
    So if an alien is already in usa he/she can be deported from usa if convicted of CMT.

    Sir,
    Could you please throw some light on this and how both INA 237 and 212 are correlated?

  8. Disney trip says:

    I was stupid in my early twenties and got caught with and convicted of misuse of drugs in 2006. I am now married, with two kids and have a good job never been in any other triuble with the law. But I want to take my kids to Disney land. Will I be allowed in the US?

  9. James says:

    My friend and I are thinking about a small vacation in America. Unfortunately he made some foolish choices and was convicted of possession of a firearm and possession of drugs, would he be allowed across the border? If not what channels would he have to go through in order to be able to leave the country? Thnx

  10. Indian says:

    I was charged with class C misdemeanor for attempted Theft …first offence. I don’t even have a traffic ticket in my record..been here in the US for 7 years. My GC is pending. I already have my EAD. Am I eligible to be in the petty offence exemption category? Please help.

  11. Pare says:

    How will a fine affect the petty offense exception? For example: a prostitution conviction, maximum sentence is no longer than 1 year, actual sentence is 6 mos, and there is a fine of $1000. Does this fine bring the offense outside of the purview of the petty offense exception?

  12. Jill says:

    Hello

    I was caught shoplifting in Canada under the age of 18. I did nit need to go to court and was told my record would be automatically sealed at 18. No action was needed by me. I have Ni record according to my fingerprinting. I cannot obtain sealed record info as I never went to court and am also trying to get info through the police and nothing has shown up. Is this considered as petty offense to apply to become a US citizen?

  13. MN says:

    I committed shoplifting four years ago. It was the first year I entered the States and paid the civil demand or penalty. Actually, I do not remember, and it was $300. Also there was no police involved and no court notification too, and I asked them if they will send it or will they do anything later, they told me no. After one year I applied for Green Card and I got approved for it. The problem is, I am going to apply for citizenship next month. Am I still eligible for citizenship or not? Do I need to mention to it in my N400 or not? Moreover, I am well educated person and working in education environment too. Please advise

  14. Green coffee is definitely the results of brewing unroasted espresso beans or what is otherwise known as coffee fruit. As we know, the bitterness of your coffee we enjoy today may be the product of brewing dark coffe beans. Just before they become in this way they required to be roasted properly. In 1100AD, the technique of roasting isn’t yet practiced so people brewed green espresso beans to make a tea-like beverage. The merchandise of brewing green coffe beans is used to have the forms of Arabic coffee today.

  15. Mike says:

    I was caught stealing about $30 worth of goods from a department store 31 years ago (1982). I plead quilty, was fined $100 and that was it. No jail time.
    I never broke the law again, in any country.

    I was able to enter the USA without any problems until a few weeks ago.
    I was detained a the airport and told I was inadmissable because I had a crime of moral turpitude.
    I was told I needed to get a US waiver (I-192)
    Since then I have found cases where people applied for a Petty Offence Exception.

    Do you think I should persue this avenue?

    Thanks!

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  17. David says:

    My spouse observed the husband of her employer in extra-martial affair in employer’s absence. Husband threatened spouse. Several days later, police arrest her for stolen property in her cabinet at employer’s residence. She had no money for an attorney and her embassy representative recommended to plead guilty. She received a sentence of 7 months but had to serve only 5 months before being deported. The alleged crime committed was theft of property valued at $20,000 Hong Kong dollars. Thank you.

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