If you were denied entry to the US because of a criminal conviction (a crime involving moral turpitude, or CIMT) and you've committed only 1 offense then you might be able to argue that you are entitled to the petty offense exception under INA §212(a)(2)(A)(ii) if you satisfy all the following 3 statements:
- he/she has committed only one CIMT;
- he/she "was not sentenced to a term of imprisonment in excess of six months (regardless of the extent to which the sentence was ultimately executed"; and
- the offense of conviction carries a maximum possible sentence of one year or less.
I quickly 'Googled' but haven't found any offenses in the current Canadian criminal code which carry maximum sentences of one year or less (see this chart that I found). My original convictions (I had 2) were for "Theft under $1,000" which I was told carried maximum sentences of 6 months each (called a summary conviction offense). But the law has been updated to "Theft under $5,000" (thanks to inflation) which carries a maximum of 2 years.
I'd be interested to know if any of you qualify for the petty offense exception and whether or not you achieved it. Labels: crimes involving moral turpitude, criminal record, petty offense exception, section 212(a)
12 comments:
I'm in exactly the same position as you and from what I've been able to gather, it doesn't look good - you'll need to apply for a waiver (rather than claim the exception).
I had 2 counts of Theft Under $1000 (a summary conviction which has a maximum penalty of 6 mos - I didn't serve time for either, just a fine and community service).
The US Code states that you can qualify for an exception for the moral turpitude (theft) conviction if (a) you only have one CIMT conviction and (b) the max sentence is less than a year and (c) you were not sentenced to more than 6 mos.
It states separately (and this may cause some hope, although I'm not sure), that if you have more than one conviction, CIMT or otherwise for which the aggregate sentence was more than 5 yrs, you are inadmissible.
Although (only looking at part two) we could be admissible without a waiver, since the aggregate sentence was low, the fact that part one makes us inadmissible for a CIMT, and then doesn't make an exception for multiple convictions, doesn't bode well.
I can be contacted at shadowradiance on yahoo dot ca should you find out more about this or want to stay in touch while I look into it, and into the waiver appl.
Megs
Hi there, you can claim the petty offence exception provided that you have only 1 CIMT. It appears that you have 2 CIMT'S. Also, the applicable law would be the statute at the time of your conviction, so regardless that the punishment has been updated to say a term of imprisonment of 2 years max, if at the time of your conviction the statute stated a summary conviction punishable by up to 6 months in prison, you would be able to qualify for the petty offence exception.
I successfully applied the petty offence exception by going to a land port of entry. I took my court record and thats all i need to prove that i'm excludable from inadmissibility. You don't really need a lawyer to go with you to the border, however, i recommend that you consult with an immigration lawyer regarding your particulars prior to talking with US Customs and Border Protection. As i am eligible for the exception, a note has been put into the system regarding my admissibility. I decided to clear this up with US Immigration prior to actually travelling to the US. Now i'm certain that i won't have any problems relating to this CIMT. I hope this helps others in a similar situation.
Good luck!
Hey there,i will tell you about my waiver experience.I was traveling to and from the Usa problem free untill that july day 2005.I was stopped at the border and asked the question "have you been fingerprinted by police ? " i said yes.Then he just directed me inside.After an hour of waiting an officer called me to the desk.He pulled my record and to my amasment all my info was compromized(id theft)someone had made all my documents and was using them. I had to prove that i was the real person.All my documents wernt accepted i had to tell them about my criminal record.Only then they believe me.The guard pulled the record and told me that the theft under 5000$ was the one that they were concerned about.He told me that they couldnt see if that charge was summery or indictable and told me to return with court documents. Simple turn around not a refuseal.The next day i returned to the border and got a diffrent officer.Mean guy.3hrs of questioning he looked @ the court papers refused them and told me 2 get a waiver.He told me i was inadmissible due to the nature of my charges.I had 3 charges they were,carry concealed weapon(young offender)possession of break in instruments,and theft under 5000$.I applied for the waiver and a pardon through a pardon company.I dont recommend them(its actually faster and cheeper if you do the paperwork yourself)for such a minor record i recived a 1 year waiver at a cost of 795 cdn + 265usd and other fees.The cbp gard at pearson told me i didnt need a waiver for these charges and i could get a september letter.I told him that i rather had that letter,but he forgot to file the documents so i handed in my waiver. I started to do some research on the petty offence
exemption.Thanks to websites like this one i gained a wealth of info.After i recived a pardon so all court documents and record were destroyed.In 2007 i had to reapply for the waiver,i asked the pardon company if they could do the waiver.Their costs was now 1100$ cdn plus the rcmp fee 75$ + the 565$ usd filing fee. Ill do that myself thanks.I saved the court documents and submitted my pardoned record hoping for a 5 year waiver.The time it took me to gather all the documents was 3 weeks.I went to pearson to file my waiver @ a cost of 565$ usd,and asked about the petty offence exemption. He laughed and said "no way the theft under 5000$ charge disposition was too long", 14 months probation.So they took my waiver application. 9 months later i got a 1 year waiver....i was pissed.This is going to be a expensive venture.I did more research on the petty offence exemption and noticed that their was a slim possibility tht i did qualify.After sifting through immigration lawyers i chose one and told him my situation.He did deep research and said i did qualify for the exemption.But i had waivers before and that was a concern,because waivers come from a higher governing body. He drafted up a letter to the dhs and stated my case.I went to the land crossing with my lawyer letter my court documents and pardond criminal record.The border guard was a seasoned tough guy was not accepting the lawyer letter, just court documents.He didnt want to read the documents but i explained to him what each document detailed. Then he said he had to talk to the boss.1 hour later he came back saying everything looks good and he lifted the inadmissibility hanging over my head and put notes in the computer so that this wount happen again.Also he stamped the passport putting a notation stating No control.I no longer needed a waiver and can travel like a regular person again. No more jumping through hoops and lots of money being wasted.Good luck all of you on getting waivers if you need info,this site was good to me very informitive.
hi buff: can you explain what the letter from your lawyer stated?
How do you obtain a court record for a petty offence exception in Ontario,Canada?
I was denied entry to the U.S. in 1995 for a 1.5 gram conviction of marijuana. Ofcourse in U.S. computer it says Narcotics offence. Mind you, I do have a charge under the young offenders act which never showed up on the U.S. system. If I get a court record regarding my narcotics charge, will my young offender convictions appear on this court record. My narcotics charge was in Kitchener,and my youth offence was in Toronto. Does anybody know how to start the Petty Offence exception? I do have a pardon and I really don't want to go through the waiver process.
In November 2010 I was denied entry to the US because of a 2000 conviction of Theft under $5k, which was processed summarily and for which I received a conditional sentence of 9 mos probation, restitution (made) and community service (served). Had never had any issues with crossing before.
Because I wanted to make sure I did it right and because I knew I had a trip in February 2011 to the US, I contacted an immigration lawyer. After renewing my case, he was very confident that I could receive a petty crime exemption but that we would go ahead and prepare the waiver as well "just in case" and that way if denied the exemption, we'd have the waiver app ready to go. I agreed, better to be prepared. We discussed that if the prints from the RCMP took too long we would just go down to the border to make the attempt at the petty crime exemption if it was getting close to my hopeful plan of departure in February. All other paperwork for the waiver is in place and ready to go.
Yesterday I learned from his assistant that after sitting down and discussing my case at length that the border services do not want any incomplete applications and that even though we're going to initially go for the petty crime exemption, that we need to wait for the fingerprints. Fingerprints (digital) were completed November 20, 2010 and they have still not been received at my lawyer's office.
It's now 2 weeks before I'm scheduled to leave for my US trip. Does anyone know if you now indeed need to have prints with you even if you are initially just presenting for a petty crime exemption? (Our thought process was that we would try for that first and if it got denied, the trip would be off regardless since then the waiver app would have to be submitted and that processing time is longer, so I wouldn't be able to cross anyway.) The thought that I now have to have the prints with me for even the exemption request has increased my stress level (unless I misunderstood what I was told yesterday). Anyone have any petty crime exemption history (recent) that they can share.
Thanks...and thanks for this blog, it's been incredibly calming to read about the process.
I had a Canadian possession of stolen goods conviction overturned and discharged in 1986, travelled to the US more than 15 times until 2005 when I was denied entry.
I applied for and received an I-194 waiver in 2006, and recently learned about the Petty Crimes Exemption from Buff's post, thanks very much. Obviously prefering to obtain the PCE rather than reapplying for another waiver, I went to Pearson airport in February 2011, tried to explain to the (I presumed experienced, close to 60 years old) customs officer that I am asking for some direction to apply for the PCE. He impatiently kept cutting me off by telling me I needed a waiver. Somehow I managed to complete my explanation, he backed off a bit apologetically, and said I needed to go to a land port of entry.
In March I went to Queenston/Lewiston, was called to the next border guard (under 30) and described my quest. He seemed to try to find out what I needed, went away to speak to his supervisor, came back and said I needed to apply to the same office (in Minnesota) where I received the waiver. He seemed to appreciate that this meant an Orwellian, Kafkas-esque limbo of hell, where you can't speak to anyone and no one genuinely knows the appropriate procedure for your situation.
I sent an email to the website connected to the waiver application but got an automated response. A few days later I phoned the listed telephone number and encountered a 9-level menu. I went through each menu, making notes, ultimately concluding there was no specific nor even suggested menu item for requesting a Petty Crimes Exemption.
So at this point I'm of course demoralized yet unsurprised. An option is to phone Niagara Falls and Windsor/Detroit and see if anyone I speak to knows anything about it. Otherwise re-apply for the waiver, but I believe I would qualify for the PCE.
Any advice would of course be immensely appreciated.
Dogfish,
Did you identify a process to apply for PCE? My experience in finding out the process has been similar to yours. No one knows what the process is. One officer told me on the phone that when you make re-entry you will be refered to deportation proceedings and an immigration judge has to make a decision, but they wont stop you from re-entry. My argument that this is a case where clearly a PCE applies, and I am a supporting court doucments, letter from lawyer etc fell on deaf ears. Dont know what to do. If you go by the comments of GreenMile above, it is a doable process. But I am not able to replicate what Greenmile did. Greenmile..any comments?
I am in the process of figuring out if I can get across the border....I was convicted of impaired driving 38 years ago, and assault 15 years ago. I've been told that if I was charged under section 266 I think he said?, then I am ok, if I was charged under any other section I am not. I have tried to get a copy of my criminal record, but that is complicated by the fact that I got a pardon. I've tried to be up front about my record, and I've gone to the border crossing in Victoria at the Black Ball ferry, but they have told me they won't run my information unless I buy a ticket, and if I buy a ticket, and they let me through, I have to get on the ferry, which means a trip of an hour and a half each way, plus $16.90 for each trip....I'd gladly pay just to get an answer, but the 3 hour trip I couldn't do as I couldn't park down there long enough, and I had my dog in the truck. Jeepers they sure make it difficult!
Hi, My fiance was minipulated into carrying what he thought was flowers to the USA in 2005 when he was just 18years old. He was stopped by customs and when he bag was searched it came to light the bags contained Khat plant, which he was told was ilegal in the USA. He was told he was now not eligible to visit the USA under the visa waiver and he was returned home. He was found inadmisable to enter under INA 212(a)(2)(a)(i)(II) and (2)(c). He was told for future trips he would need to obtain a visa. In 2010 he applied for a visa and was refused under the same act above. The more research we've done we are wondering if he would be eligible for the Petty Offence Exception as he only commited the one crime and was not prosecuted. Any thoughts from anyone on this? Any advice much appreciated.
Many Thanks.
K Lowes
Simply put, does anyone know the right process to obtain the Petty Offence Exception?
Post a Comment