(A)  The IIRAIRA definition of the one-CMT deportation ground governs removal proceedings initiated[1008] on and after April 1, 1997.  The statute defining the one-CMT ground of deportation now provides:

 

Any alien [in the United States] who –

(I)   is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of a noncitizen provided lawful permanent resident status under section 245(j)) after the date of admission, and

(II)    is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable.[1009]

Thus, under the current, post-AEDPA law, the sentence requirement is that a potential one-year sentence could be imposed.  A sentence of “at least one year” means a sentence of 365 days or more, rather than requiring a  “natural or lunar” year of 365 days plus some hours,[1010] or a 366-day year containing Leap Year Day.  Twelve months is the equivalent of one year.[1011]

 

This means that any conviction, including a misdemeanor conviction, with a maximum sentence of one year in custody will trigger the one-CMT ground of deportation.  The maximum sentence for some misdemeanor convictions is six months or less; in those cases, a misdemeanor CMT conviction will not trigger this deportation ground.   Each state statute must be individually assessed.

 

Under the federal, and some state, sentencing schemes, the statutory maximum for an offense may not be legally imposed solely upon a finding that the basic elements of the offense have been committed.  Instead, the statutory maximum can only be imposed upon a finding of additional factors.  The United States Supreme Court recently held that any factual sentence enhancement that increases potential punishment over a statutory maximum constitutes an element of the offense and must be found by the jury.[1012]  In the immigration context, this holding may therefore limit the ability of the immigration authorities to establish that a given crime has a “maximum possible sentence” of more than one year in certain cases.  The immigration authorities may be required to show not only that the noncitizen was found guilty of the minimum elements, but that s/he was also found guilty of the additional elements that would warrant the imposition of the statutory maximum.[1013]

IIRAIRA clarified that the ten-year group in the one-CMT removal ground refers to those noncitizens who obtained lawful permanent residence by providing substantial cooperation to law enforcement authorities and received “S” visas, commonly known as “snitch visas.”  Under former law, there were two provisions designated as INA § 245(i), 8 U.S.C. § 1255(i): the “snitch visa” adjustment provision and the current § 245(i) (allowing for adjustment with a fine for noncitizens who would otherwise be ineligible to adjust).  IIRAIRA changed the “snitch visa” adjustment provision to INA § 245(j) and changed the reference from § 245(i) to § 245(j) in the one crime of moral turpitude removal ground.[1014]

[1008] Neither the INS nor the BIA has interpreted the word “initiated.”  Under existing regulations, a proceeding commences when the INS files the order to show cause with the immigration court.  Although the AEDPA uses the word “initiated,” the DHS may interpret the provision to apply to proceedings commenced by filing an order to show cause with the immigration court after April 24, 1996.  Compare 8 C.F.R. § 242.1 (referring to hearings commenced when INS files order to show cause) with AEDPA § 435(b) (referring to proceedings initiated by the filing of a Notice to Appear).  Since the amendment applies to cases initiated after April 24, 1996, practitioners should pay close attention to ensure that the DHS lodges charges based on the appropriate statute.

[1009] INA § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i), as amended by the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 130003(d), 108 Stat. 1796, 2026, as redesignated and amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) (enacted as Division C of Omnibus Consolidated Appropriations Act, 1997, Pub. L. No. 104-208, § 305(a)(2), 110 Stat. 3009, 3009-597); Matter of Fortiz, 21 I. & N. Dec. 1199 (BIA 1998).

[1010] Matsuk v. INS, 247 F.3d 999 (9th Cir. 2001).

[1011] Matter of B, 2 I. & N. Dec. 578 (BIA 1946).

[1012] Blakely v. Washington, 124 S.Ct. 2531 (June 24, 2004) (clarifying rule of Apprendi v. New Jersey, 530 U.S. 466 (2000)).

[1013] But see United States v. Rios-Beltran, 361 F.3d 1204 (9th Cir. March 24, 2004) (whether prior state conviction may be considered as being punishable by more than one year’s imprisonment for federal enhancement purposes depends upon the statutory maximum for the offense, even if state’s sentencing guidelines do not permit imposition of the full sentence).

[1014] INA § 237(a)(2)(A)(i), 8 U. S. C. § 1227(a)(2)(A)(i).

Ninth Circuit

CRIMES OF MORAL TURPITUDE " DEPORTATION " SENTENCE
Ceron v. Holder, ___ F.3d ___, ___, 2014 WL 1274096 (9th Cir. Mar. 31, 2014) (en banc) (California wobbler offense is a conviction for a crime for which a sentence of one year or longer may be imposed, since even if when treated as a misdemeanor, the maximum penalty is incarceration for one year), overruling Garcia-Lopez v. Ashcroft, 334 F.3d 840, 843 (9th Cir. 2003) and Ferreira v. Ashcroft, 382 F.3d 1045, 1051 (9th Cir. 2004), to the extent that they misstated California law

CRIMES OF MORAL TURPITUDE " DEPORTATION " SENTENCE
Ceron v. Holder, ___ F.3d ___, ___, 2014 WL 1274096 (9th Cir. Mar. 31, 2014) (en banc) (California wobbler offense is a conviction for a crime for which a sentence of one year or longer may be imposed, since even if when treated as a misdemeanor, the maximum penalty is incarceration for one year), overruling Garcia-Lopez v. Ashcroft, 334 F.3d 840, 843 (9th Cir. 2003) and Ferreira v. Ashcroft, 382 F.3d 1045, 1051 (9th Cir. 2004), to the extent that they misstated California law.

CRIMES OF MORAL TURPITUDE " DEPORTATION GROUND " SENTENCE
Mendez-Mendez v. Mukasey, 525 F.3d 828 (9th Cir. 2008) (the plain language of the phrase, maximum penalty possible in INA 212(a)(2)(A)(ii)(II), 8 U.S.C. 1182(a)(2)(A)(ii)(II), refers to the statutory maximum, not the guideline range, so noncitizen was ineligible for the petty offense exception to inadmissibility for one CMT conviction, under INA 212(a)(2)(A)(ii)(II), 8 U.S.C. (a)(2)(A)(ii)(II)). Note: This result is different under state sentencing statutes that prohibit a sentence in excess of one year for a given offense, criminal history, or other circumstances. United States v. Simmons, __ F.3d __ (4th Cir. Aug. 17, 2011), overfuling United States v. Tlarp, 406 F.3d 242 (4th Cir. 2005).