CBP Reverses Inadmissibility Finding: Another Murthy Success Story30 Jul 2010
The Murthy Law Firm is proud to report that we have successfully resolved another case in which a foreign national was rejected at the U.S. port of entry. This case involved an incorrect determination that the individual was inadmissible to the United States due to a petty theft conviction. The Customs and Border Protection (CBP) officer found that the individual was legally barred from entering the United States, and canceled his visa and required him to return from the airport on the next flight to his home country. As explained below, this decision was not correct under the law.
Murthy Always Maintains Confidentiality of Cases
We at Murthy Law Firm do not reveal the identity of any client or the specifics of a case without written consent. This foreign national became our client when seeking assistance after he was denied admission to the United States. We appreciate his generosity in allowing us to use this case example to benefit other MurthyDotCom and MurthyBulletin readers.
Conviction of Petty Theft
The foreign national was lawfully present in the United States as an F-1 student. He was properly attending school and pursuing his studies. Unfortunately, he was involved in an incident involving concealing merchandise. He was charged with the offense of petty theft and was sentenced to a number of hours of community service. He did not serve any time in jail for the offense, and completed the community service required before leaving the United States for a short trip abroad.
Scenario at the U.S. Airport upon Arrival
When the foreign national returned to the United States, he presented himself at the CBP inspection station. Once there, a CBP officer made an incorrect determination that he was inadmissible as a person who had been convicted of a crime involving moral turpitude (CIMT). Accordingly, the officer canceled the F-1 visa, and allowed the student to withdraw his application for admission to the United States and depart the country immediately from the airport he had just entered.
Shoplifting and Theft Generally are CIMTs
In many instances shoplifting or other theft charges are CIMTs. In some cases, as explained in our MurthyDotCom article, Holiday Shopping: Know the Law, it is correct that a person becomes inadmissible and even removable (deportable) based upon such a charge. However, it is not the same in every case.
Murthy Takes Action by Submitting Legal Memo and Arguments
This individual contacted Murthy Law Firm, seeking our assistance after having departed the United States. The case was assigned to our Special Projects department. The attorneys analyzed the case and found that the conviction of petty theft did not render him inadmissible. We quickly made contact with the CBP officers at the airport / port of entry concerned. We transmitted a detailed legal argument and memorandum in support of our client’s eligibility for admission to the United States. This was sent to the port director, as the lead CBP official for the port of entry.
Petty Offense Exception to CIMT Applied in this Case
The general rule of law is that an individual who has been convicted of, or admits to having committed, a CIMT is inadmissible to the United States. The charge of petty theft is a CIMT. However, there is an exception to the general inadmissibility rule, applicable in our client’s situation. This exception is commonly referred to as the “petty offense exception.” A CIMT falls under the category of a petty offense exception if, under the particular state law involved in the case, the maximum possible penalty does NOT exceed imprisonment of one year AND the actual sentence imposed is not more than six months jail time.
In our letter to the CBP, we demonstrated that the foreign national’s conviction fit within the petty offense exception under both the state criminal statute and federal immigration laws. We demonstrated that the maximum punishment possible for petty theft in the state in which this individual was convicted does not exceed imprisonment of six months and he did not receive any jail term. Thus, he was admissible to the United States and the determination of inadmissibility made by CBP was incorrect and needed to be reversed.
CBP Agrees with Murthy Arguments and Confirms in Writing
After several weeks of communications with the CBP officer involved, we received a phone call from a CBP officer. The officer confirmed that our client could schedule an F-1 visa interview (to get a new visa to replace the one that had been incorrectly canceled at the POE) and that CBP would issue a letter concurring with our argument that the conviction fell under the petty offense exception. We relayed this information to our client, and forwarded the CBP’s favorable letter to him.
Client Granted Emergency Visa Interview: Murthy Intervention Required at Consulate
Upon receiving the letter from CBP, our client attempted to schedule an F-1 visa interview at the nearest U.S. consulate. However, he received a message from the consulate stating that his visa application was pending further administrative review. The Murthy Law Firm stepped in to address this further glitch. We contacted the consulate directly, reiterating the argument that our client was admissible and, accordingly, should be admitted to the United States. We also submitted the letter from CBP confirming our position. Within hours, our client was granted an emergency visa interview. At the conclusion of his consular interview, our client was told that his visa would be issued to him within days.
We are pleased to share another of our firm’s success stories with MurthyDotCom and MurthyBulletin readers. We want to express our appreciation for the kind attention and cooperation of the CBP officers who worked to resolve this incorrect determination of inadmissibility to the United States, and provided the necessary information to the U.S. consulate. We also thank the consulate for granting the emergency visa interview. We offer this case example to our readers as an example of one of the types of immigration problems that can be solved by our team at the Murthy Law Firm.
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