Crimes of Moral Turpitude

(D)

Maximum Possible Sentence of One Year or Less in Custody.  The Petty Offense Exception also requires that the maximum sentence of imprisonment that could have been imposed be one year or less; a greater maximum is a disqualifier.[107]  For offenses committed in the United States, the criminal statute that establishes the maximum allowable time in custody for the crime of which the defendant was convicted determines whether this requirement is met.[108]

If the conviction is for a misdemeanor rather than a felony, the Petty Offense Exception can apply, assuming the misdemeanor is punishable by a maximum of one year or less in custody.  Some states’ statutory schemes differ, however, so the particular state statute establishing the maximum for the offense of conviction must be consulted to determine whether the maximum possible sentence for the misdemeanor is one year or less in custody.[109]  Similarly, in some states, the maximum custody for some felonies is one year or less.  Where this is so, the felony CMT does not disqualify the noncitizen from eligibility for the Petty Offense Exception.  This requirement depends on the maximum, not the felony or misdemeanor label of the offense.

If the offense could be either a felony or a misdemeanor, and the initial conviction is for a felony, the immigrant may be able in some states, such as Arizona and California,  to obtain reduction from a felony to a misdemeanor.[110]  Because the immigration authorities are bound by the most recent sentence ordered,[111] they must give effect to a state court reduction of the offense from a felony to a misdemeanor, and the conviction will thereby fall within the one-year maximum sentence requirement of the Petty Offense Exception, if the new misdemeanor maximum is one year or less.[112]

[107] See, e.g., Membreno v. Ashcroft, 385 F.3d 1245 (9th Cir. Oct. 19, 2004) (California conviction of assault with a firearm, in violation of Cal. Penal Code § 245(a)(2), for which imposition of sentence was suspended and six months imposed as a condition of probation, remained a felony since court did not expressly reduce the conviction to a misdemeanor; conviction therefore did not fall within the Petty Offense Exception).

[108] See Matter of Mendoza, 11 I. & N. Dec. 239, 240-241 (BIA 1965); Matter of CO, 8 I. & N. Dec. 488, 490-491 (BIA 1959).  It has been pointed out that this approach produces divergent results, as one state may provide a different maximum for a given offense than another state.  Note, Exclusion or Deportation of Aliens for the Conviction of Foreign Crimes Involving Moral Turpitude: Grand Problems with the Petty Offense Exception, 14 Cornell Int’l L.J. 135, 140-141 (1981). 

[109] Cf. Liao v. Rabbett, 398 F.3d 389 (6th Cir. Feb. 7, 2005) (Ohio conviction of possession of heroin, in violation of Ohio Rev. Code § 2925.11, a “fifth degree felony” under Ohio law, which is punishable by a maximum term of 12 months’ imprisonment, did not constitute an aggravated felony drug trafficking offense, under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B)).

[110] This will fulfill the third requirement for the Petty Offense Exception, that the maximum sentence must be one year or less.  LaFarga v. INS, 170 F.3d 1213 (9th Cir. 1999).

[111] Matter of Cota-Vargas, 23 I. & N. Dec. 849 (BIA 2005)Matter of Song, 23 I &N Dec. 173 (BIA 2001).

[112] Garcia-Lopez v. Ashcroft, 334 F.3d 840 (9th Cir. June 26, 2003) (California court order reducing grand theft conviction from a felony to a misdemeanor with a maximum no greater than one year, was binding upon the immigration courts for purposes of qualifying the offense under the petty offense exception to inadmissibility for a crime of moral turpitude); Lafarga v. INS, 170 F.3d 1213, 1215 (9th Cir. 1999) (same for Arizona reduction).