Criminal Defense of Immigrants


§ 20.36 2. Former Sentence Requirement

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Although IIRAIRA repealed the statute formerly defining the one-CMT ground of deportation,[231] the former statute still governs deportation cases pending before April 1, 1997.[232]  Even in those cases, the Attorney General has authority to apply the new grounds of deportation,[233] or to reinitiate (“repaper”) proceedings under the new law.[234]  By regulation, the grounds of deportability defined under the former statute[235] govern deportation cases that commenced prior to April 1, 1997.[236]


For cases initiated prior to April 1, 1997, the following language from the former statute still applies:


(i) Crimes of moral turpitude. – Any alien who –

(I) is convicted of a crime involving moral turpitude committed within five years or 10 years in the case of an alien provided lawful permanent resident status under section 1255[(j)] of this title after the date of admission, and

(II) either is sentenced to confinement or is confined therefor in a prison or correctional institution for one year or longer, is deportable.


Thus, for cases initiated prior to April 1, 1997, an actual sentence of one year or more must have been imposed for this deportation ground to apply.[237]  A sentence of 12 months is equivalent to one year.[238]


The computation of “sentence imposed” for this purpose is the same as for the aggravated felony categories of offense that require a one-year sentence imposed.  See § § 10.64, supra.


[231] INA § 241(a), 8 U.S.C. § 1251(a).

[232] IIRAIRA § 309(c)(1).

[233] INA § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i).

[234] IIRAIRA § § 309(c)(2) and (c)(3).

[235] INA § 241(a), 8 U.S.C. 1231(a).

[236] 8 C.F.R. § 240.16.

[237] Gutierrez v. INS, 323 F.2d 593 (9th Cir. 1963) (narcotics conviction); Fells v. Garfinkel, 158 F.Supp. 524 (W.D. Pa. 1957); Holzapfel v. Wyrsch, 157 F.Supp. 43 (D.N.J. 1957), aff’d on other grounds, 259 F.2d 890 (3d Cir. 1958); Matter of De La Cruz, 15 I. & N. Dec. 616 (BIA 1976); Matter of D, 8 I. & N. Dec. 658 (BIA 1960); Matter of V, 7 I. & N. Dec. 577 (BIA 1957); Matter of LR, 7 I. & N. Dec. 318 (AG 1957); Matter of M, 6 I. & N. Dec. 346 (BIA 1954). 

[238] Matter of B, 2 I. & N. Dec. 578 (BIA 1946).