Dear Sean: I have a potential client who has a conviction for Theft. He pled guilty and got 1 yr. Deferred Adjudication. The crime has a max sentence of no more than 1 yr. imprisonment. However, his deferred adjudication (i.e. they will drop the charges if he maintains good behavior for one year and performs certain community service obligations) was sentenced in excess of 6 months. The actual term of imprisonment was 100 days in the county jail (i.e time served pending the sentencing of deferred adjudication).
Based on this, is he eligible for petty offense exception? Should he wait to file for naturalization until he has some good equities?
Thanks for the question! The petty exception rule, for naturalization, is triggered by 8 CFR 316.10 (requirements for naturalization), and enumerated under 8 CFR 212(a)(2)(A)(ii)(II). The rule states:
(ii) Exception.-Clause (i)(I) shall not apply to an alien who committed only one crime if- ... (II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) 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 (regardless of the extent to which the sentence was ultimately executed).
So, for the petty exception, you need a couple of things.
1. The maximum sentence must be one year or less.
2. The sentence given must be 6 months or less, regardless of time actually served.
For example, if the crime had a maximum sentence of 1 year, and your client was given 1 year with all but thirty days suspended, he would not be eligible.However, if the crime has a maximum sentence of 1 year, and your client was given 30 days, all 30 suspended, he would be eligible. It is for this reason that a sentence of under one year is so important when dealing with petty criminal matters.
I agree with your assessment. He pled and was given what appears to be 1 year jail sentence, all time suspended as part of a deferred sentence. That’s still a conviction for immigration purposes. See, USCIS Policy manual.
Also, your fella may be placed in removal proceedings; this is a heightened risk if he committed the crime during the five year look back period. See paragraph H in the USCIS Policy manual
I am unclear whether this happened more than five years prior. You mention it might – but then give an August 2016 date. If it is more than 5 years prior, you could probably apply if you have really really strong equities to support rehabilitation. However, that a CIMT is a bar to cancellation, too. If he is placed in removal proceedings, he would have serious issues. Make sure you have a defense strategy such as 212(h) or something similar to stop the removal process if he is placed before the judge.
Do you have questions about immigration or criminal law? Call us! We would be glad to review your case and discuss options. Good legal advice is critical in the immigration arena. 1-800-579-9864.
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