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Important: The Petty Offense Exception concerning CIMTs and Naturalization.

Discussion in 'US Citizenship' started by ZeusNero, Jul 9, 2010.

  1. ZeusNero

    ZeusNero Registered Users (C)

    This has been discussed numerous times, but since there is a lot of confusion regarding this, it might be wise to clear things up.

    2 CIMTs (not arising out of a single scheme) within the first 5 years of admission into the United States will make you deportable and inadmissible into the United States.

    A single CIMT within the first 5 years of admission also makes you deportable and inadmissible. However, there is an exception to this rule, ie. the petty offence exception.

    Basically, what it says is that if the offence (a CIMT and the only CIMT) is not punishable by a term of more than a year and the actual sentence served is less than 6 months. A suspended sentence is also considered a as having spent time in jail for immigration purposes.

    That's pretty clear I guess.


    But then comes the debate about Naturalization.

    Some say that the petty offence exception does not apply to Naturalization as it does to Deportation and Inadmissibility, others say it does. I'm talking within the 5 or 3 year statutory period here.


    This is from the USCIS:

    (2) Conditional Bars to Establishing Good Moral Character .


    (A) Effect of Crime Involving Moral Turpitude (CIMT) Convictions . An applicant who commits and is convicted of or admits to committing one or more crimes involving moral turpitude during the statutory period cannot establish good moral character and is ineligible for naturalization. See 8 CFR 316.10(b)(2)(i) . However, there is an exception to the general rule, which you must consider. See section 212(a)(2)(A)(ii)(II) of the Act. The exception applies if the applicant has committed only one CIMT and the crime is a petty offense. A petty offense is defined as a crime for which the maximum penalty possible for the crime does not exceed imprisonment for one year and , if there is a conviction, the term of imprisonment does not exceed six months, regardless of suspension. Thus, an individual convicted of a CIMT will only qualify for the exception if the two conditions are satisfied. Not only must the sentence imposed have been less than six months, the maximum possible sentence that could have been imposed must not exceed one year.


    For example, suppose an applicant commits petty theft in the statutory period. This was his or her only conviction. The applicant was fined and sentenced to one year of probation and community service. The maximum possible sentence for this conviction is 364 days. No term of imprisonment was imposed. The applicant meets both conditions of the petty offense exception and is not precluded from establishing GMC. In the above example, if the applicant had also received a suspended jail sentence of eight months, he or she would not meet the exception because he or she does not meet the second condition of the petty offense exception. The petty offense exception is inapplicable to an alien who has been convicted of or who admits the commission of more than one crime involving moral turpitude, even if only one of the two or more CIMTs was committed during the statutory period. An applicant who has committed more than one petty offense, only one of which is a CIMT, remains eligible for consideration of the petty offense exception. See Legal Opinion 95-12 .






    Of course, the IO has the discretion of establishing GMC.

    But according to the USCIS, they may also consider:




    - Is this the applicant’s only offense?


    - Did the unlawful act occur early or late in the statutory period?


    - What was the final outcome of the arrest?


    - How long was the applicant on probation?


    - Did the applicant comply with all conditions of the probation?






    So anybody care to comment on this. Has anyone been Naturalized having committed a petty offence within the statutory period?
    Last edited by a moderator: Jul 9, 2010
  2. ZeusNero

    ZeusNero Registered Users (C)

    Bump!

    Don't the more experienced people here have something to say about this?
  3. Bobsmyth

    Bobsmyth Volunteer Moderator

    There's nothing under the law that states that the petty offense exception applies to determination of GMC as well. A CIMT committed during the statutory period precludes an applicant from establishing GMC, regardless of whether the CIMT qualifies for the petty offense exception or not. Although the AFM does seem to imply that the petty offense exception applies to determination of GMC as well, in reality it does not.

    http://www.murthy.com/news/UDshoplg.html
  4. ZeusNero

    ZeusNero Registered Users (C)

    I read a case in the Murthy forums where a person convicted of theft very close to the interview got Naturalized under the petty offence exception. I guess it is up to the IO, they have the discretion of to decide GMC.
  5. Lolitochka

    Lolitochka Registered Users (C)

    Does it mean that the person who committed one petty offense during statutory period,
    With maximum jail sentence of no more than six months,
    Can he or she apply for naturalization after five years passed from the date of his/her arrest?

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