Crimes of Moral Turpitude

(B)

Petty Offense Exception.  The Petty Offense Exception to inadmissibility on account of a single CMT conviction (or admission) applies only where the sentence imposed is six months or less.  If the original sentence imposed was in excess of six months, the noncitizen could not qualify for the Petty Offense Exception.  If the criminal court, however, reduces, modifies, or vacates the original disqualifying sentence, and imposes a new sentence of six months or less, that order will be effective in removing this disqualifier and the noncitizen will become eligible for the Petty Offense Exception to inadmissibility.[268]

A sentence can be invalidated not only by a finding of ineffective assistance at sentencing but also during the crucial period prior to sentence.  The Ninth Circuit held the presentencing cooperation period is a critical stage of the criminal process, and obtaining a substantial assistance motion for a downward departure from the government represents a particularly critical point in that process.[269]  It held the district court’s refusal to hold an evidentiary hearing on allegations which, if proved true, would make out such a claim, constitutes reversible error. The court stated:

Not only is cooperation essential to the interests of defendants facing sentencing, it serves the government’s interests by allowing it to command the services of so many defendants with information or connections that are valuable for law enforcement purposes. Given the symbiotic nature of the relationship, it is not surprising that defendants’ attempts to cooperate have become such a central part of criminal procedure. We now acknowledge that reality by recognizing attempted cooperation as a critical stage of the proceeding. As substantial assistance has become the last, best hope of so many defendants, the guarantee of competent counsel must apply to the process of seeking such a recommendation.

            The Third Circuit held that the criminal court’s alteration of a valid and accurate restitution order, done solely to avoid adverse immigration consequences, was ineffective to do so.[270]  The court found the reduction in the restitution amount to be ‘irrelevant’ for two reasons.  First, the court distinguished between ‘restitution’ and ‘loss’.  Second, based on a Matter of Pickering-style argument, the court noted that, “[I]t is apparent from the motion and is not disputed here that the motion was not based on a redetermination of the amount of loss caused by the crimes but was intended to alter the effect of the conviction for immigration purposes.”[271]  Similarly, the Eighth Circuit has found that a twelve-month suspended sentence imposed with one year probation remains a sentence of one year, even if probation is later revoked and the defendant required to spend some time  (under a year) in jail.[272]

[268] Garcia-Lopez v. Ashcroft, 334 F.3d 840 (9th Cir. June 26, 2003) (California discretionary court order reducing a conviction of violating Penal Code § 487.2, grand theft from the person, from a felony with a three-year maximum 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, INA § 212(a)(2)(A)(ii)(II), 8 U.S.C. § 1182(a)(2)(A)(ii)(II), so the noncitizen was eligible for suspension of deportation).

[269] United States v. Leonti, 326 F.3d 1111 (9th Cir. Apr. 24, 2003) (ineffective assistance can arise in sentencing context when counsel failed to effectively assist a defendant awaiting sentencing in his willing efforts to provide cooperation to an interested government).

[270] Munroe v. Ashcroft, 353 F.3d 225 (3d Cir. Dec. 16, 2003) (New Jersey theft by deception, N.J.S.A. 2C: 20-4, held to be aggravated felony fraud conviction under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), for deportation purposes where actual loss to victim exceeded $10,000, even though sentencing judge reduced amount of restitution from $11,522 to $9,999, since critical fact is amount of loss, not restitution amount).

[271] Munroe v. Ashcroft, 353 F. 3d 225 (3d Cir. Dec. 16, 2003).

[272] Hernandez v. U.S. Att’y Gen., 513 F.3d 1336 (11th Cir. Jan. 18, 2008) (twelve month suspended sentence, and one year probation, is a sentence imposed of one year, even if probation is later revoked and the defendant required to serve 22 days in jail).