The Petty-Offense Exception to CIMT Inadmissibility: INA §212(a)(2)(A)(ii)(II) Done Right

A single CIMT can survive inadmissibility if the maximum possible sentence was a year or less and the actual sentence was six months or less. Matter of Garcia-Hernandez sets the math.

By Fola Editorial · September 30, 2003 · 6 min read

The petty-offense exception at INA §212(a)(2)(A)(ii)(II) (8 U.S.C. §1182(a)(2)(A)(ii)(II)) is one of the few statutory bypasses to crime-related inadmissibility — and it is the most underused. A noncitizen with a single CIMT can escape inadmissibility entirely if (1) the maximum possible penalty for the crime did not exceed one year of imprisonment, and (2) the noncitizen was not sentenced to more than six months. The BIA crystallized the modern application in Matter of Garcia-Hernandez, 23 I&N Dec. 590 (BIA 2003), decided September 30, 2003 — the decision that anchors current practice and is the foundational citation for this exception.

What changed

The petty-offense and single-CIMT exceptions sit at INA §212(a)(2)(A)(ii). The provision reads:

(ii) Exception. — Clause (i)(I) shall not apply to an alien who committed only one crime if —

(I) the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of application for a visa or other documentation and the date of application for admission to the United States, or

(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).

Two distinct exceptions, both narrow:

The youth exception at (II)(I): one CIMT, committed before 18, released from confinement more than 5 years before the visa application.
The petty-offense exception at (II)(II): one CIMT, with a maximum possible penalty of one year or less, and an actual sentence of six months or less. The “ultimately executed” parenthetical tracks the §101(a)(48)(B) rule that the sentence imposed controls regardless of suspension.

The BIA in Matter of Garcia-Hernandez clarified two things that practitioners had been litigating since IIRIRA:

The “one crime” element is satisfied even if there are multiple statutory violations charged in the same incident, so long as only one of them is a CIMT. A defendant who pled to one CIMT and one non-CIMT in the same plea has committed “one crime” within the exception. The exception fails only when the noncitizen has more than one CIMT in his record.
“Maximum penalty possible” is read against the statute of conviction as a whole. If the state statute provides a one-year maximum for the petty-offense range and a higher maximum for the aggravated range, and the noncitizen was convicted of the petty-offense range only, the maximum-possible analysis looks at the petty-offense range. The categorical approach as refined by Matter of Silva-Trevino, 26 I&N Dec. 826 (BIA 2016) reinforces this — the elements of the offense of conviction, not hypothetical other elements, control.

Why it matters

The petty-offense exception is the difference between an I-485 adjustment approval and an I-601 waiver denial. A noncitizen with a single misdemeanor CIMT — for example, a state petit-theft conviction with a 364-day maximum and a 90-day sentence — is not inadmissible at all under §212(a)(2)(A)(i)(I) thanks to the exception. There is no need to file a §212(h) waiver, no need to document extreme hardship, no need to identify a qualifying relative.

That has cascading effects. Because the noncitizen is not inadmissible:

The I-485 adjustment clears the §245(a)(2) admissibility requirement.
The I-130 consular case is unaffected.
The N-400 naturalization still must clear the GMC look-back, but the CIMT does not bar admissibility.

The exception does not apply to:

Deportability under §237(a)(2)(A)(i). Deportability for a post-admission CIMT has its own framework (committed within 5 years of admission, with a one-year-or-more maximum). The petty-offense exception lives in §212, not §237.
Controlled-substance offenses. The exception covers CIMTs at §212(a)(2)(A)(i)(I) but not the controlled-substance ground at (i)(II).
Multiple CIMTs. Two CIMTs takes the noncitizen out of the “one crime” element automatically.

The §212(a)(2)(B) “multiple criminal convictions” ground also stays separately on the table — five or more years of sentences in the aggregate is a separate inadmissibility ground, and the petty-offense exception does not reach it.

Way forward

A practical workflow:

Pull the statute of conviction and identify the maximum possible penalty. State statutory schemes vary. A “Class A misdemeanor” in one state carries a 12-month maximum (potentially within the exception); in another it carries 364 days (within); in a third 18 months (outside).
Pull the judgment and identify the sentence imposed. The six-month threshold uses the imposed sentence, treating a suspended sentence as imposed under §101(a)(48)(B). A 180-day sentence is within; a 181-day sentence is outside.
Confirm the “one crime” element. Run a full criminal-history check; the Policy Manual at Volume 8, Part F walks through USCIS’s screening process. A single second CIMT — even a juvenile-court CIMT not used for inadmissibility purposes — removes the exception.
Brief the exception in the I-485 adjustment package itself. Do not file an unnecessary I-601 waiver. USCIS adjudicators sometimes miss the exception on the initial review; an attached memo citing §212(a)(2)(A)(ii)(II), Matter of Garcia-Hernandez, and the certified records of conviction prevents the unnecessary RFE.
Combine with the Silva-Trevino II categorical analysis. If the statute is overbroad under the categorical approach, the conviction is not a CIMT at all — and the petty-offense exception is unnecessary. Run the categorical analysis first; the exception is the fallback when the conviction is categorically a CIMT but petty.

Disclaimer

Fola Form is a software company, not a law firm. Nothing in this article is legal advice and reading it does not create an attorney-client relationship. The petty-offense exception is statute-specific and sentence-specific; the analysis turns on the exact maximum penalty under the statute of conviction and the exact sentence imposed. Verify against the primary source — the Board of Immigration Appeals precedent decisions index (for Matter of Garcia-Hernandez, 23 I&N Dec. 590) — along with the INA §212(a)(2)(A)(ii)(II) statutory text before relying on this analysis in any individual case. Consult a licensed immigration attorney about CIMT exposure and petty-offense eligibility on a specific record.