Crimes of Moral Turpitude

(C)

Sentence Imposed of Six Months or Less.  The immigrant will qualify for the Petty Offense Exception if s/he obtains a sentence imposed of six months or less, or suspended imposition of sentence with six months or less jail time as a condition of probation.  This requirement is violated by a court-ordered sentence in excess of six months, even if the person does not actually serve a sentence in excess of six months.[103]  Note, however, that the definition of “sentenced to imprisonment in excess of six months” is technical.  See, generally, Criminal Defense of Immigrants Chapter 10, supra.  For example, if a term of imprisonment in excess of six months is imposed, suspended execution of that sentence does not prevent the entire sentence (including the portion as to which execution was suspended) from being counted as a sentence for this purpose, disqualifying the noncitizen from eligibility for the Petty Offense Exception.[104] 

            The actual sentence imposed by the court determines whether the person meets this requirement for the Petty Offense Exception, even if the conviction occurred in a foreign country.[105] 

            A prison term “in excess of six months” is generally assumed to mean a term in excess of 180 days.  Counsel can argue, however, that a sentence imposed of 182 days would not disqualify a person from the Petty Theft Offense Exception, since a year consists of 365 days, and half a year (i.e., six months), would therefore consist of 182.5 days.[106]

[103] Matter of Castro, 19 I. & N. Dec. 692 (BIA 1988) (person could be excluded where sentence was suspended); Solis-Muela v. INS, 13 F.3d 372 (10th Cir. 1993) (followed Castro).

[104] See, e.g., Matter of M, 6 I. & N. Dec. 346 (BIA 1954); Matter of Castro, 19 I. & N. Dec. 692 (BIA 1988); INA § 101(a)(48)(B), 8 U.S.C. § 1101(a)(48)(B).

[105] See Matter of Scarpulla, 15 I. & N. Dec. 139 (BIA 1974); Matter of M, 8 I. & N. Dec. 453, 454-455 (BIA 1959).

[106] Thanks to Jacob Weisberg for this argument.