There are two different versions of the statute defining the one-CMT ground of deportation.  The date of initiation of deportation or removal proceedings determines which version applies in a given case. 

 

For proceedings initiated prior to April 24, 1996, a sentence of one year or more must have been imposed in order to trigger the one-CMT ground of deportation.[1006]  See § 7.128, infra. 

For removal cases initiated on or after April 24, 1996, AEDPA provided that a conviction of a CMT with a possible sentence of one year or more was sufficient to trigger deportation.[1007] See § 7.129, infra.

[1006] See N. Tooby, J. Rollin & J. Foster, Crimes of Moral Turpitude § 5.10 (2005).

[1007] See N. Tooby, J. Rollin & J. Foster, Crimes of Moral Turpitude § 5.9 (2005).

Tenth Circuit

AGGRAVATED FELONY - SENTENCE - SENTENCE TO PROBATION IS NOT IN EXCESS OF ONE YEAR FOR AGGRAVATED FELONY PURPOSES ILLEGAL REENTRY - SENTENCING
United States v. Gonzalez-Coronado, ___ F.3d ___, 2005 WL 1941631 (10th Cir. Aug. 15, 2005) (sentence directly to probation is not a sentence in excess of one year, for purposes of aggravated felony crime of violence; despite district court error in enhancing sentence based upon aggravated felony conviction, resentencing is not necessary where defendant would have received equivalent increase because offense is a felony).

Other

CRIM DEF - SENTENCE - PROBATION VIOLATION
Where a defendant has previously received a sentence of 364 days in custody for an offense that would be an aggravated felony with a one-year sentence imposed, any additional custodial sentence imposed as a result of a probation violation would be added to the original sentence and would transform the conviction into an aggravated felony. Defense counsel at the probation violation plea bargaining and sentencing stages should: (1)  Ask the court to vacate the original probation condition imposing the custodial sentence of 364 days;

(2)  Enter a waiver of credit for time previously served for the 364 days already served; and

(3)  As the court to impose a new probation condition of whatever time in custody will meet the prosecution and courts sense of an appropriate additional custodial sentence for the probation violation. (A new sentence of no more than 180 days in custody would enable the conviction to qualify under the sentence-imposed requirement of the Petty Offense Exception to inadmissibility for a crime of moral turpitude conviction if that is a relevant consideration for the defendant.)

Since the court explicitly vacates (even if not as legally invalid) the original 365 sentence order, that is effectively eliminated for immigration purposes.  Matter of Cota, 23 I. & N. Dec. 849 (BIA 2005); Matter of Song, 20 I. & N. Dec. 136 (BIA 1989); LaFarga v. INS, 170 F.3d 1213 (9th Cir. 1999).