Petty Offense Exception In Crimmigration Law

Why You Need To Understand Crimmigration

Over the years, I’ve represented countless immigrants who thought a minor criminal conviction was “no big deal,” only to discover it wrecked their immigration future. The reality is that under the INA, even a misdemeanor conviction — even with no jail time — can make you inadmissible or even deportable. If you are in need of an Arlington, VA deportation defense lawyer, I am here to help with this and many other immigration needs.

One of the most common pitfalls is being convicted of a crime involving moral turpitude (CIMT). A CIMT is a vague legal term that includes crimes with elements of fraud, dishonesty, theft, or intent to harm — such as shoplifting, simple assault, domestic violence, or certain fraud‑related offenses.

Even a single CIMT can block you from getting a green card, re‑entering the U.S., or applying for other benefits. That’s where the petty offense exception comes in.

What Is The Petty Offense Exception?

Congress recognized that it would be unjust to banish someone for life over one tiny mistake. So the INA at §212(a)(2)(A)(ii)(II) says that one CIMT will not make someone inadmissible if:

• The maximum possible penalty for the offense does not exceed one year,
• And the actual sentence imposed is six months or less.

If you have only one CIMT on your record — and it was a minor misdemeanor — you may still be able to qualify for your immigration benefits.

What Kinds Of Crimes Can Qualify?

Over my career, I’ve helped clients use the petty offense exception in cases like these:

• A young man who shoplifted a $25 shirt and was sentenced to probation.
• A woman charged with misdemeanor simple assault after a bar fight, given 90 days suspended.
• A man who used a false ID at work and paid a fine with no jail time.

On the other hand, the exception does not apply if:

• You have more than one CIMT.
• The maximum possible sentence for the offense is more than one year (common in certain state misdemeanors).
• You actually received more than six months of jail or prison time.

What You And Your Criminal Attorney Should Do

Here is the most important part: what happens in criminal court often determines whether you will qualify for the petty offense exception later.

When I work with clients and their defense attorneys, these are the key strategies I recommend:

• Avoid multiple convictions. The exception only applies if there is one CIMT.
• Make sure the maximum possible sentence for the crime on paper is no more than 364 days. In many states, misdemeanors carry up to one year, which can already cause problems — so getting it reduced to 364 days or less is critical.
• Make sure the actual sentence imposed — even if suspended — is six months or less. Ideally, aim for probation, fines, or time served that stays well under the limit.
• If possible, negotiate for a non‑CIMT charge or diversion program that avoids a conviction entirely.

I’ve seen too many cases where no one thought about the immigration consequences until it was too late. Don’t let that happen to you.

Why The Exception Isn’t Enough

Even though the petty offense exception can save some people, it is narrow and unforgiving. It does not apply to drug offenses, to people with more than one CIMT, or to green card holders facing deportability.

It’s also no substitute for smart lawyering at the criminal stage. I can work with your criminal defense attorney to make sure your plea agreement and sentence stay within the limits of the exception — and, if possible, avoid the CIMT altogether.

Closing Thoughts

The petty offense exception is one of the very few breaks in an otherwise rigid and unforgiving immigration system. But it only works if you and your legal team understand it and plan for it from the start.

If you or someone you know is facing criminal charges and worried about immigration consequences, reach out. I help clients and their defense lawyers navigate these tricky situations every day. With the right advice and strategy, you may still have a path forward.

How Criminal Charges Impact Immigration

Why Criminal Charges Matter

For many immigrants, the U.S. immigration system is already complicated and stressful — but a criminal charge can make things much worse. Even something that seems minor to you, like shoplifting, a bar fight, or a joint, can have serious and lasting consequences for your ability to stay in the United States. Driving while under intoxication is never minor or small. Please don’t.

Whether you’re a lawful permanent resident, have TPS or DACA, or no status at all, it’s important to understand how even a single mistake can put your future at risk. You are not a U.S. citizen and while nothing will happen to a U.S. citizen for a small amount of marijuana, you can face deportation for a class 1 substance conviction (yes, marijuana is still illegal on the federal level).

Types Of Crimes That Cause Problems

Here are the kinds of offenses that most often trigger immigration consequences:

• Crimes involving moral turpitude (CIMTs): This includes theft, fraud, assault with intent to harm, and domestic violence. Even a single CIMT can make you deportable or inadmissible.
• Aggravated felonies: Under immigration law, this category includes not just violent felonies, but also some theft, fraud, and drug offenses — even if your state classifies them as misdemeanors.
• Controlled substances: Any drug conviction, even simple marijuana possession, can result in removal.
• Domestic violence and protective order violations: Under INA § 237(a)(2)(E), convictions for domestic violence, child abuse, child neglect, or violating a protection order can make you deportable.
• Firearms offenses: Possessing or carrying an unregistered or illegal firearm can also make you removable.

What If The Case Was Dismissed?

A lot of people tell me, “Don’t worry — my case was dismissed.” But in immigration law, not all dismissals are equal.

If your charges were dropped outright — no plea, no admission of guilt, no probation, no classes — then you’re usually in the clear.

But if your case was “dismissed” after you completed probation, attended classes, or fulfilled conditions of a plea, it may still count as a conviction under immigration law.

Why? Because under INA § 101(a)(48)(A), a conviction exists if:

1. You plead guilty, no contest, or admitted facts sufficient for guilt, and
2. You received any punishment, penalty, or restraint — like probation, fines, or mandatory programs.

So even if the record says “dismissed,” if you admitted guilt and served conditions, immigration may still treat it as a conviction.

A Special Warning For Virginia Cases

Here in Virginia, one common example of a “dismissal” that is still treated as a conviction for immigration purposes is under Virginia Code § 18.2‑251.

This statute allows for a drug possession charge to be dismissed after completing probation, treatment programs, or community service. But — because it requires an admission of guilt and imposes penalties — it is still a conviction under immigration law, even though the criminal court calls it a dismissal.

So if you hear your lawyer say, “We’ll get it dismissed under 251,” that is a red flag for your immigration case. Or ask your criminal attorney, “Will this be a 251 dismissal?”

If your defense attorney proposes a 251 deal, stop and talk to me — or another immigration lawyer who understands how 251 affects your status — before agreeing to anything.

How To Protect Yourself

1. Before pleading guilty, speak to an immigration attorney who understands how criminal charges affect status. Many criminal defense lawyers simply don’t know.
2. Specifically ask your defense lawyer: “Is this a 251?” If it is, pause and consult an immigration attorney.
3. Keep all your court documents — they are critical to understanding what really happened in your case.
4. Be honest with me or any immigration lawyer about the facts of your case — surprises later can hurt your chances.

Are There Any Options After A Conviction?

In some situations, yes. You may still qualify for certain waivers or relief, like Cancellation of Removal. But it’s harder, and it takes careful planning and strong advocacy.

If you’ve been arrested, charged, or convicted — especially if you’re facing a 251 in Virginia or grand larceny as an immigrant— don’t assume it’s no big deal. The sooner you address it and get good advice, the better your chances of protecting your future.

Contact the Law Offices of Ricky Malik, PC if you need assistance.