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Petty Offence Exception

append delete philmeup1

Hello folks,

I'm fairly new to this site, but have been visiting often. I'm really getting into reading others stories on here and offering helpful answers when I can. Finding information on some of this stuff can be a bit tricky as we all know. So first I'd like to offer a big thank you to everyone on here.

Now to my question. Thanks to someones advice on this site, I believe I may qualify for the Petty Offence Exception. Bought stolen property under $1000 back in 1990, summary conviction and the only charge I've ever had. I've had three successful waivers so far, and am in the process of preparing my fourth.

But if I qualify for the Petty Offence Exception, then obviously that's the route I'd prefer to take. I've been doing a bit of research online and It seems a bit unclear (go figure) on what the procedure is for this. I've received my fingerprint chart back from the RCMP stating no record found. My plan was to take this and supporting documents to a US Border Crossing to apply.

After speaking with a service that handles US Waivers, they told me doing this was a real gamble as many of the border guards lack knowledge regarding the Petty Offence Exception, Waivers etc. That makes sense as I've witnessed this first hand. I've had everything from you do need a waiver. You don't need one. The last time you came down you should have done this.Why didn't the previous officer make you fill this form out? Why did you fill out this form? You don't need to. It's a bit ridiculous to be honest. Some have even argued at me about what procedures previous customs officers have put me through, and I'm only trying to follow what appears to be ambiguous rules. I do what I'm told to do and I'm as polite and cooperative as I can be whenever I'm crossing the border.

Does anyone on here have any insights into this? Has anyone on here successfully received a September Letter which is essentially the Petty Offence Exception? How and where did you apply? Perhaps some border crossings are better than others? I'm quite certain I qualify. I would just appreciate input from others before I before I proceed further. I've already suffered enough grief from all of this. I think we all have. I'd really like to put this to bed once and for all.

Thanks everyone

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append delete #1. Petty

@philmeup1

There is alot of info on the web about this.
This should help:

A crime involving moral turpitude is considered a “petty offense” if:

1)the maximum penalty that you could have received for committing the offense is exactly one year or less, AND

2)you personally were sentenced to no more than six months imprisonment, regardless of the amount of time you actually served.

IMO, u don't need a waiver. the waiver companies do not hire lawyers do they do not know what this is...just take a printout of what a petty offence exception is and a court document that states that it was summary and the factors above.
Good luck.

append delete #2. philmeup1

Thanks for the response Petty. I definitely meet the criteria from your list above. I didn't go to jail at all. I was just given 1 year of probation with 50 hours of community service work. Once I cleared my name in Canada, this whole thing simply went away.

But in the US, it's an entirely different story. I've had enough Customs Officers tell me that I really don't require a Waiver, so I'm going to do as you suggested and see what happens.

Still, if anyone else has any personal experience/insight into this, I'd appreciate hearing from you. I'll be headed to a crossing somewhere in Southern Ontario within the next few weeks with my fingers crossed and full documentation in hand.

Thanks everyone

append delete #3. Frank Jr.

Just because you didn't actually go to jail doesn't mean that you would necessarily qualify for the Petty Offence exception. The INA states that the qualifier must be that the offence in question must have a POTENTIAL, i.e.; maximum, incarceration time of more than one year. You will need to drill down as to what the Criminal Code of Canada maximums were in 1990...it is not simply a matter of summary vs. indictable offence here. For example some offences that are routinely sentenced with conditional discharges carry 14-year maximums, as hard as that is to fathom.

Secondly, claiming the Petty Offence exception is not something that you can readily "apply for" (short of receiving the elusive "September Letter") and until you have this you will otherwise need to make your case each and every time you cross and "apply" for admission into the U.S., and it is to the discretion of the border officer to allow you entry. You will need to make a package of documents that clearly and concisely explains how your situation qualifies. And be prepared to politely and effectively communicate this to the officers in primary inspection lane and/or secondary.

append delete #4. philmeup1

Man, this sucks!! If I had cleared my name before attempting to cross, none of this would be happening. Doesn't matter. I've already told myself that way too many times. I appreciate what your saying Frank Jr. I've read a lot of your posts since joining this site. Lots of great and helpful information.

So I guess I'll attempt to find out what the maximum sentence was was for possession of stolen property under $1000 back in 1990. If what I find looks positive for my case, I'll take this to a border crossing and see what happens. My current Waiver doesn't run out until March of 2017, so I still have a bit of time.

And of course there's always the Waiver to fall back on. I've never had an issue getting one of these.

Thanks for taking the time Frank. I was hoping you'd chime in on this. I'm gonna do as you suggested and go from there.

Cheers

#5. Darquise Leroux

This post was deleted by its owner

append delete #6. Stress

Any update on your petty offense exception?

append delete #7. philmeup1

Hi Stress, I have yet to go to a border crossing to plead my case. I'm still working on putting everything together before I go. I'm also a bit torn now on what I should do after reading Frank Jr's comment on my post. Do I just get another waiver, or ask for the petty offence exception?

Not all border guards may agree that I do in fact qualify for the petty offence exception. I've already had issues with some guards telling me I need a waiver and others that say I don't. But with a valid waiver in hand, it doesn't matter either way what their opinion is. It becomes more difficult for them to refuse entry with pre authorized clearance.

Then there's the other scenario, and I can see it happening now. I go to Pearson Airport for a flight to Florida. I show up to US Customs and it begins. Petty what? says the officer. Never heard of it and you don't qualify for it anyway. You're a criminal!! But I don't even have a record..... Can I please just show you what I have here and why I believe I qualify? I don't care, you're not getting on that plane. Go home and apply for another waiver. And don't come back here until you have it.

All it takes is the negative decision from one customs officer and you're screwed, because this seems to set the precedent for your next visit. Most of the officers I've dealt with lately have been very nice. But I've also had a few that were not. And it would be one of these guys that says, Not interested, go home.

Anyway, sorry, I'm rambling on here. I will certainly post what route I end up taking and what the outcome is. As much as I hate this hassle (and it's only when I travel to the US) I've enjoyed this site immensely. People helping other people and sharing good information.

Stay tuned......

append delete #8. White Rock

*** HOPEFULLY THIS INFO MAY HELP OTHERS ***
Hi,
I will explain my case regarding "petty theft exclusion" Back in 74 I was charged with shoplifting a $12 item,sentenced in 75 to a $50 fine plus 2 yrs probation.This came back to haunt me in about 2012 or so and was told I needed a waiver.First waiver was for a year and i've recently applied for my second waiver.Recently had a very nice supervisor re-check my situation for what people refer to as a "September Letter".I'll explain exactly what he had told me. >>>>>>>>>>>>>>>>>>>>>>

I have done the research on your documents presented and unfortunately it does appear that you need a waiver to seek entry into the U.S.

Here is the actual law from Canadian Code in 1975:

Punishment for theft -- s. 294
SYNC TOC
294. Except where otherwise provided by law, everyone who commits theft is guilty of an indictable offence and is liable

(a) to imprisonment for ten years, where the property stolen is a testamentary instrument or where the value of what is stolen exceeds two hundred dollars, or

(b) to imprisonment for two years, where the value of what is stolen does not exceed two hundred dollars.
In immigration law it is not the actual time served that gives you the exemption for the inadmissibility. It is the potential time served that brings about the inadmissibility. Even though your sentence was only for 15 days by law the potential was two years.
In 1985 Canadian Criminal Code became a lot less harsh. After 1985 anything processed under a summary conviction had a maximum sentence of one year, which is the threshold for meeting the exemption for being inadmissible. Prior to 1985 a summary conviction was always 2 years which threw anybody with a summary conviction into the inadmissible category.
Unfortunately not everyone in CBP knows all the nuances of the 1985 law change. Most officers would just read that your charge was a summary conviction and they deemed you admissible which allowed you to enter for so many years.
It is definitely inequitable for those with convictions prior to 1985 because in effect you can have a subject that shoplifted a pocket watch worth $75 in 1979 and he is inadmissible. Then you can have a subject that stole a car worth $4000 in 1989 who is admissible because theft under $5000 in 1989 was a summary conviction with a max sentence of 1 year.
Your only recourse at this time is to apply for the I-192 waiver. I am guessing (but can’t guarantee) that due to the seriousness of the crime you will most likely receive a 5 year waiver

append delete #9. philmeup1

Hi White Rock,

Thanks for sharing your story. I've been having difficulty finding what the maximum potential sentence was in 1990 for possession of stolen property under $1000. I was pretty certain it was 1 year which goes along with what you're saying. This would mean I qualify for the Petty Offence Exception, provided I can convince each Customs Officer of this fact every time I try and cross.

As you also pointed out, many officers do not know about these things and many of them aren't interested in hearing your story either. I'm sorry you still need to obtain a waiver to cross, but at least you will have peace of mind that your potential for refusal is relatively low. I'm still on the fence as to whether I apply for another waiver or go to the border sometime when it doesn't matter and plead my case for the exception. That's now a decision for 2017.

Anyway good luck with everything and Happy Holidays.

Phil

append delete #10. philmeup1

Hello again folks,

As I'm continuing to work on the possibility of qualifying for the petty offence exception, I have a question I'm hoping someone on here might be able to answer. I've found lots on information about this subject online, but nothing from an official US Government website. The petty offence eligibility requirements seem pretty basic and the information remains consistent on all of the websites I've visited, but its from lawyers offices and other private services looking to sell you their service.

I think it's important that I have information pulled right from the source when I go to plead my case at a US Border Crossing. If anyone can provide a link to where this might be located on on a US Government website, I'd appreciate it.

Thanks in advance and happy New Year

Phil

append delete #11. philmneup1

Hello again folks. I can now add another thread to my story for those who are interested. Forgive me if I go on for a bit here..... I just got back from being in the US over the weekend with a few colleagues of mine. We went down to see a sporting event and spent the night in a hotel.

As always, ambiguity seems to be the key factor in my dealings with CBP. So here's how it started. We all give our passports to the officer and I hand him mine with my Visa/Waiver letter inside. Mine also contained an expired I-94 card inside it. This was the start of what was a very unpleasant experience for us. I was asked why I had the expired I-94 card inside my passport. I explained to him that as of late I've been given cards that don't expire until 6 months time and this was the first time I had been back down to the US since my last visit, when it was still valid. He told me I should have dropped everything and made a special trip down to return this card. He then said if it happens again, I'm going to be banned for the next ten years. He really lit into me about this and went on about this point for 5 minutes. I just sat there and stared at him not saying a word. I don't live close to the US and it's quite a haul for me to go there. Especially to drop off one little piece of paper.

First a word about this I-94 card. I've gone through in the past and not been asked to go inside to get the card, so I just went on my way. This caused problems on my next visit when the officer went up and down me about how I should have got the card from the previous officer. He told me I should have insisted that he give it to me. He then said I could go to jail without having the card. This went on for about twenty minutes with me pleading with him to just give me the card then and I'd be on my way. I'm sorry that the previous customs officer didn't do what you wanted him to do. Anyway, as far as it goes for me, never been to jail and never want to go!!!! And then there's returning the expired card. I've been told to give it to CDN Customs upon my return entry to Canada and now this, it has to be returned to US Customs. I don't know what the right answer is on this one. Maybe someone on here has some insights? If you give it to a Canadian Customs Officer, do they return it to US officials?? Who knows....

Anyway, back to this past weekend. Once I did get a chance to speak, I brought up the Petty Offence Exception and how I thought it might apply to my situation here. I told him maybe I don't need these waivers after all. He told me he couldn't find anything attached to my name (because there isn't anything) and sent us all inside. It was a sad sight folks. The racial profiling is at its peak it seems. Basically,the only four white guys were us.

When I finally got called up to speak with someone, his first question to me was why I thought I didn't need a Waiver. I've done hours of research on this and attempted to explain what I uncovered as a result. I told him I was planning on coming back this week with my sister , who's a police officer to either present my case successfully or submit another completed Waiver packet. His response was that no one at any border crossing, including supervisors, has the ability to grant Petty Offence Exceptions or the so called September Letter. He also said that I will always need a Waiver because of some code or something that's attached to my file that says I will always need one. He was quite short with me on this, go figure.

Anyway, I'm going back down this week and here's what I've got for them. I have a copy of the Criminal Code handbook from 1990 when I was charged. It clearly states in this book that the maximum possible penalty for possession of stolen property under $1000 is one year and six months jail time. All I ended up with was fifty hours of community service from this, and that was it. I didn't even have to apply for a pardon, to which the guy I spoke with yesterday didn't believe. It just went away after a set amount of time. Why would I lie about that? His point was that if you've ever been pardoned for anything, a waiver is automatically necessary.

Long and short of it is that I certainly do not remain hopeful on getting the September Letter. I've even considered just giving up on this all together. I don't need to go the the US for work or anything. And I'm getting tired of being totally harassed just to have the benefit of spending my money down there as a tourist. Still, I've decided I will go. I know I'll get another Waiver for sure. I've got nothing attached to my name. I've received all kinds of awards for things like community betterment and such since my charge of 26 years ago. My sister will come with me, (although they told me they don't have to speak with her if they don't want to) And I will post on the outcome once I make the trek back down to the US.

As always, thanks to everyone on here for their insights.

Cheers


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