Safe Havens

(B)  Where a Prior Conviction Increases the Statutory Maximum Sentence.  The Ninth Circuit has held that a sentence enhancement based upon a prior conviction cannot be used to determine whether a noncitizen has been convicted of a crime for which a sentence of one year or more may be imposed.  The court held in that case that a noncitizen convicted of a California petty theft with a prior conviction was not deportable under INA § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i), since only the petty theft maximum sentence (six months) was or could be imposed for the offense of conviction.[1015]  The two-year prison sentence had been imposed not for the offense of conviction, but instead for the sentence enhancement triggered by a prior conviction.

In other circuits, if a noncitizen is charged with removal on account of a conviction of a crime of moral turpitude for which a sentence of one year or more may be imposed, and that maximum applies only because of the existence of a prior conviction, the noncitizen can attempt to reopen the “prior” criminal case and have the prior conviction vacated on the merits.  If successful, the noncitizen should no longer be removable.  The deportation ground is written in the present tense (“sentence . . . may be imposed”),[1016] and the condition precedent to the higher maximum sentence no longer exists.  (This argument might not apply to the petty offense exception, since that statute is written in the past tense, to apply if the maximum sentence “did not exceed” one year.)[1017]

[1015] Rusz v. Ashcroft, 376 F.3d 1182 (9th Cir. Aug. 2, 2004).

[1016] INA § 237(a)(2)(A)(i)(II), 8 U.S.C. § 1227(a)(2)(A)(i)(II) (emphasis supplied).

[1017] INA § 212(a)(2)(A)(ii)(II), 8 U.S.C. § 1182(a)(2)(A)(ii)(II) (emphasis supplied).