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Would A Criminal Offense in NJ Municipal Court Qualify Under The Petty Offense Exception?

On Behalf of | Feb 10, 2014 | Common Immigration Questions and Problems, Criminal Law & Municipal Court, Deportation |

As has been discussed in previous entries, a conviction of a crime involving moral turpitude (“CIMT”) constitutes one of the most common grounds of removability-whether it be in terms of deportability or inadmissibility. What exactly is a crime involving moral turpitude is, of course, a very complicated question subject to much interpretation and beyond the scope of this discussion. In short, though, crimes involving moral turpitude are generally those that are considered against the standards of common morality and almost always involve some knowing or purposeful conduct. Crimes which involve fraud, deceit, or intentional inflectional of severe physical injury usually are at risk of being classified as such. Conviction of a crime involving moral turpitude or, under certain circumstances, even an admission of having committed a CIMT, is a ground of inadmissibility under section 212 of the Immigration and Nationality Act, which would not only potentially bar an individual from being legally admitted to the US but also prevent an individual from qualifying for a green card or visa, whether immigrant or non-immigrant. Fortunately, there is a safe harbor: it is titled the Petty Offense Exception, and serves to exempt one CIMT offense under certain specified conditions.

In order for a CIMT to fall under the Petty Offense Exception, there are three prongs that must be met:

1) Only a single crime involving moral turpitude has been committed

This is a hard and fast rule. If the non-citizen has been convicted of more than one CIMT, then he or she may no longer claim protection under the petty offense exception. As such, it is important to understand that an individual’s entire criminal record will be considered, and even expunged offenses don’t necessarily have the same effect of expungement in the immigration arena as they do in the criminal arena. If the second conviction, however, is not for a CIMT, the individual may still be eligible for the Petty Offense Exception.

2) The offense carried a maximum sentence of one year or less

If maximum exposure for commission of the crime is over a year of incarceration, then the non-citizen will be ineligible for the exception. In New Jersey, the maximum exposure for committing a petty disorderly offense is six months and/or $1000 fine. Since the maximum possible penalty is under one year, a conviction of a single crime involving moral turpitude that is prosecuted as a disorderly persons offense in New Jersey, may not necessarily bar admission to the United States.

3) The sentence imposed was six months or less

If the non-citizen was sentenced to six months or less of imprisonment, then he or she may qualify for the exception, assuming the other two prongs are met. A sentence of more than six months, however, even if not fully served or suspended, will disqualify the individual.

Of course, determining whether a criminal offense falls under the Petty Offense Exception is more complicated than adhering to the rules above. At the outset, it must first be determined whether the crime itself is one of moral turpitude. Only after predicting the likely classification of the crime would one then proceed to analyze the year it was committed; the maximum possible penalty that one would be exposed to; what sentence, if any, was served; and the individual’s entire criminal record. Remember, as well, that the Petty Offense Exception applies within the context of inadmissibility. Deportability is a different term of art and involves a different legal analysis.

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