(C)  Grounds of Deportation Dependent on Sentence Imposed.  Three critical grounds of deportation hinge on the length of the “sentence imposed.” 

 

(1)  Many Common Convictions Become Aggravated Felonies if a Sentence of One Year or More Is Imposed.  This is the most important of the rules based on the length of “sentence imposed.”  If the sentence can be vacated or reduced, and a sentence of less than one year substituted, the conviction will no longer be considered an aggravated felony.[102]

 

(2)  A Sentence Imposed of More than Six Months Will Disqualify a Noncitizen from Obtaining the “Petty Offense Exception” to Inadmissibility.[103]  This exception excuses inadmissibility based on one conviction of an offense involving moral turpitude.[104]  Many forms of immigration relief depend on a finding of admissibility.[105]  A noncitizen may become deportable as inadmissible at entry for a CMT conviction unless the Petty Offense Exception excuses inadmissibility on this ground.

(3)  Multiple Conviction Ground of Inadmissibility Requires Aggregate Sentences of Five Years or More.  A noncitizen is inadmissible if s/he has been convicted of two or more offenses, other than purely political offenses, for which the aggregate sentences to confinement were five years or more.[106]  This ground affects noncitizens in all the different contexts in which the Petty Offense Exception and Good Moral Character apply.[107]  A noncitizen may become deportable as inadmissible at entry for multiple convictions with an aggregate sentence imposed of five years or more unless the sentences imposed total less than five years and the person is not inadmissible on this ground.

 

[102] See N. Tooby, Post-Conviction Relief for Immigrants § 7.5 (2004).

[103] See INA § 212(a)(2)(A)(ii), 8 U.S.C. § 1182(a)(2)(A)(ii).

[104] INA § 212(a)(2)(A)(i), 8 U.S.C. § 1182(a)(2)(A)(i).

[105] See N. Tooby, Post-Conviction Relief for Immigrants § 7.8 (2004). 

[106] INA § 212(a)(2)(B), 8 U.S.C. § 1182(a)(2)(B).  It is not necessary that these offenses be crimes of moral turpitude, and does not matter whether the convictions resulted from one or more proceedings or schemes of criminal misconduct.  Ibid.

[107] See N. Tooby, Post-Conviction Relief for Immigrants § § 7.10-7.11 (2004).

Other

CRIMINAL DEFENSE - SENTENCE
M. Shein, Cultural Issues in Sentencing, in L. FRIEDMAN RAMIREZ, ED., CULTURAL ISSUES IN CRIMINAL DEFENSE 625 (2d ed. 2007).