CIMt conviction - travel abroad, future citizenship-please help!

[iregretitsomuch]

Hi,
I am really ashamed to say that I have been convicted of petit larceny in VA which is a class 1 misdemeanor, max possible sentence is upto 12 months. My lawyer was trying to reduce the charges but the DA on my case was very very strict. I am on a green card and my lawyer told DA about the possible problems in immigration and future citizenship, but DA said as long as I am not going to jail for more than 6 months, I will be fine with immigration. So in the end they gave me 5 months 29 days jail sentence , all of which is suspended for 3 years if I don't get into any other trouble.
I plead not guilty, but "enough evidence stipulating my guilt".
This is my first and only offense, never even had a speeding ticket.
Here are my questions-

1. I am planning to go to India later this year. Can they stop me at POE and deport me? What are the chances of successfully visiting abroad and come back?

2. I will be eligible for citizenship 3 years from now. How will this CIMT conviction effect that. Is there a CIMT exception for citizenship?

Please reply with any advise /experiences in such cases.
Thanks.

 

[WBH]

Don't know about deportation part. But for citizenship you have to wait for a longer time for this event to be outside 5-year statutory period for good moral character test (or 3 years if you apply for citizenship on basis of marrying to a US citizen for 3 years)

 

[Bobsmyth]

1. I am planning to go to India later this year. Can they stop me at POE and deport me? What are the chances of successfully visiting abroad and come back?

They can stop you at POE and send you to secondary inspection to verify if you are deportable and/or inadmissible (if you intend to leave for more than 6 months). In your case, you aren't since the maximum possible sentence was less than 1 year and the actual sentence less than 6 months. If you intend to travel, carry your court documents with you to show the sentence imposed.

2. I will be eligible for citizenship 3 years from now. How will this CIMT conviction effect that. Is there a CIMT exception for citizenship?

Please reply with any advise /experiences in such cases.
Thanks.

There is no CIMT waiver for naturalization. You'll have to wait at least 5 years after your conviction to be eligible to apply under 5 year rule, or 3 years after conviction if applying under 3 year marriage to US citizen rule.

However, the adjudicator's field manual and past BIA ruling have allowed the inadmissibility petty offense waiver to be used for determination of GMC, meaning a CIMT with an actual sentence of less than 6 months imposed and a maximum possible sentence of not more than 1 year does not preclude you from showing GMC.

http://imminfo.com/library/nats-gmc.html

 

[Jackolantern]

In your case, you aren't since the maximum possible sentence was less than 1 year and the actual sentence less than 6 months.

The OP said the max possible sentence is 12 months. 12 months is not less than a year, last time I checked.

 

[WBH]

The OP said the max possible sentence is 12 months. 12 months is not less than a year, last time I checked.

Is it actual sentence that matters or max possible sentence that matters?

If some crime may not have mandatory max/min sentence on paper, does it mean in such a case even a minor issue means maximum sentence being
life time?

If one really get convicted for not registering Selective Service, does it mean
the one should be deported because max sentence for failure to register selective service is 5 years

Movies/TV drama are not good source of legal advice but CBS show Judge Amy has an episode the judge want to do a non-citizen juvinile defadent a favor
by sentence him to 364 days to avoid deportation (apparently maximum possible senetcne is much greater than that)

 

[Bobsmyth]

The OP said the max possible sentence is 12 months. 12 months is not less than a year, last time I checked.

The maximum possible sentence for a class 1 misdemeanor in Virgina is 12 months. (VA Code 18.2-11).

For deportation purposes, the CIMT must be for a maximum sentence of 1 year or longer.

Since 12 months is the cutoff mark, for deportation purposes the maximum possible sentence must actually be more than 1 year. In fact, the petty offense exception under the inadmissibility rule uses the language of "..did not exceed 1 year..".

 

[WBH]

Since 12 months is the cutoff mark, for deportation purposes the maximum possible sentence must actually be more than 1 year. In fact, the petty offense exception under the inadmissibility rule uses the language of "..did not exceed 1 year..".

INA 237(2)(A) says "a sentence of one year or longer" for deportability.
(inadmissibility might be different)

http://www.uscis.gov/propub/DocView/slbid/1/2/65?hilite=

(A) General crimes.-

(i) Crimes of moral turpitude.-Any alien who-

(I) is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 245(j) ) after the date of admission, and
(II) is convicted of a crime for which a sentence of one year or longer may be imposed.



is deportable

 

[Bobsmyth]

Is it actual sentence that matters or max possible sentence that matters?

The maximum possible sentence matters for deportation and inadmissibility purposes. Furthermore, the actual imposed sentence matters for petty offense waiver under inadmissibility law (INA 212). Interestingly, USCIS allows inadmissibility petty offense exception for determination of GMC for naturalization.

 

[iregretitsomuch]

Thanks guys for all the comments and advise/

So does it mean I can travel with all the documents, but will not be able to apply for citizenship before 5 more years?

Isn't "petty offense exception" means your CIMT is exempted to make you unable for citizenship. In other words, if you qualify for CIMT exception, you can apply for citizenship even with a CIMT within 5 years of green card?

Can anybody shed light onto this please.

 

[Bobsmyth]

So does it mean I can travel with all the documents,

Correct, but seek the advice of a lawyer since there is some disagreement about the maximum impossible sentence (does 1 year or more for deportation purposes include misdemeanor 1 sentence of 12 months?)

...but will not be able to apply for citizenship before 5 more years?

Not necessarily so, as the adjudicator manual and BIA have allowed petty offense exception in admissibility law to pertain to determination of GMC as well for naturalization purposes.

Isn't "petty offense exception" means your CIMT is exempted to make you unable for citizenship. In other words, if you qualify for CIMT exception, you can apply for citizenship even with a CIMT within 5 years of green card?

That's correct, but again seek the advice of an immigration lawyer to determine if your misdemeanor maximum possible sentence of 12 months is still considered a petty offense exception.