Law and the Border: ‘Petty offense’ exception for criminal convictions
November 1, 2006
Most of the time, this occurs because the driver has not anticipated a full review of his past, and does not have the correct paperwork with him to prove his criminal conviction record. The Customs an...
Most of the time, this occurs because the driver has not anticipated a full review of his past, and does not have the correct paperwork with him to prove his criminal conviction record. The Customs and Border Protection (CBP) officer is guided only by the information contained in the computer, which may be incomplete or in summary form.
For example, the record may contain evidence of a conviction for “assault.” Does that mean simple assault, sexual assault, assault with a weapon, or some other kind of assault? The CBP officer will refuse admission to the driver if there is any doubt about the nature of the offense. Sometimes a person is charged with more than one offense, and those charges are dismissed or reduced at the time of disposition. The computer entry may refer to the original charges, not the disposition.
A driver must be able to provide complete evidence of the nature of his conviction, and the driver needs to understand the immigration rules regarding “crimes of moral turpitude” and the “petty offense” exception.
Under the immigration law system, crimes are considered to be either “crimes of moral turpitude” (CIMT), or not. Non-CIMTs generally do not affect admissibility to the US unless the person has done five years or more of jail time.
If a person has one or more CIMT offenses as an adult, he is inadmissible to the US and needs a waiver. However, there is an exception to that general rule. The petty offense exception states that a person remains admissible if he has only one CIMT offense, and if the maximum possible sentence did not exceed one year. (Note that this refers to the maximum possible sentence in the statute, and not to the sentence, if any, actually imposed.)
But changes to the CCC over the past 12 years affect the applicability of that general principle. Although the six-month maximum still remains the rule for most summary convictions, some offenses call for a longer maximum jail time of up to 18 months. A person with only one CIMT offense, treated summarily, with an 18-month potential maximum jail term, would not fall under the petty exception. Although we have not done a detailed analysis of the CCC on this point, it appears that some provisions of the CCC became changed to the longer timeframe, or were added anew to the CCC, after 1994. Examples include Uttering Threats of death or bodily harm (264.1(2)(b)), Assault With a Weapon (267(b)), Unlawfully Causing Bodily Harm (269(b)) and Sexual Assault (271(1)(b)).
The CBP officer may not know when the law was changed to increase the potential penalty to 18 months. The burden of proof would be on the driver to show that his conviction occurred at a time where a summary conviction still called for a maximum six-month penalty.
If you think this subject pertains to you, you should carry with you at all times the complete evidence of the charges and disposition, as well as a copy of the CCC provision in effect at the time of the conviction. Remember, the first step in the analysis is whether the offense was a CIMT offense or not. If non-CIMT, the petty offense exception does not apply, and the person is probably admissible to the US without a waiver. If it is a CIMT, and there is only one such offense, see if it was a summary conviction, and whether the maximum possible jail time at the time of the conviction was one year or less. A little preparation in advance can save a lot of time and expense in the future.
– Daniel Joyce is a partner with the Buffalo N.Y. law firm Jaeckle Fleischmann & Mugel LLP. He can be reached at (716) 843-3946.