3. Sentence of one year or longer may be imposed.
Prior to the 1996 amendments, the sentencing requirement for a crime involving moral turpitude required that the alien be "sentenced to confinement or is confined therefore in a prison...for one year or longer." Now, the crime involving moral turpitude must simply be punishable with a sentence of one year or longer. Aquino-Encarnacion v. INS, 296 F.3d 56 (1st Cir. 2002). This distinction is important in reviewing old cases that may refer to the sentence actually imposed.
In cases where a statute allows an offense to be treated as a misdemeanor or a felony, the 9th Circuit has found those provisions to not be felonies. Garcia-Lopez v. Ashcroft, 334 F.3d 840 (9th Cir. 2003). Similarly, if a felony (burglary) enhances a petty offense (shoplifting), even if both are CIMTs, the second crime would not be a deportable offense under 9th Circuit law. Rusz v. Ashcroft, 376 F.3d 1182, 2004 WL 1716415 (9th Cir. Aug. 2, 2004). In other locations, for the petty offense exception to not apply, the second petty offense must also be a CIMT. Matter of Garcia-Hernandez, 23 I. & N. Dec. 590 (BIA 2003).
C. Post-conviction Relief
1. Expungement or Vacation.
In the majority of circuits, an alien remains convicted of a removable offense for federal immigration purposes when a state vacated the predicate conviction pursuant to a rehabilitative statute or simply to aid the alien in avoiding adverse immigration consequences and not due to any procedural or substantive defect in the original conviction. Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), rev'd on other grounds, 465 F.3d 263 (6th Cir. 2006); Sanusi v. Gonzales, 474 F.3d 341 F.3d (6th Cir. 2007); Alim v. Gonzales, 446 F.3d 1239 (11th Cir. 2006), Pinho v. Gonzales, 432 F.3d 193 (3rd Cir. 2005); Ramos v. Gonzales, 414 F.3d 800, 805-06 (7th Cir. 2005); Cruz-Garza, 396 F.3d 1125 (10th Cir.2005); Resendiz-Alcaraz v. Ashcroft, 383 F.3d 1262, 1268-71 (11th Cir. 2004); Murillo-Espinoza v. INS, 261 F.3d 771 (9th Cir. 2001); Herrera-Inirio v. INS, 208 F.3d 299 (1st Cir. 2000). For example, in Matter of Adamiak, 23 I. & N. Dec. 878 (BIA 2006), where the state court vacated a conviction for failure of the trial court to advise the alien defendant of the possible immigration consequences of a guilty plea, there was no longer a conviction for immigration purposes.
In contrast to the majority of circuits, the Fifth Circuit holds that a criminal conviction vacated for any purpose remains a conviction for immigration purposes. Garcia-Maldonado v. Gonzales, _ F.3d _, 2007 WL 1865562 (5th Cir. 2007); Renteria-Gonzalez v. INS, 322 F.3d 804 (5th Cir. 2002).
In Saleh v. Gonzales, _ F.3d _ , 2007 WL 2033497 (2nd Cir. 2007), where the state court nunc pro tunc amended Saleh's 1993 conviction for receiving stolen property (for which a sentence of one year or longer could have been imposed) to petty theft "solely for the purpose of circumventing the immigration laws of the United States," and not based on any showing of innocence or any defect (substantive or procedural) in the underlying criminal proceedings, the court held that Saleh remained convicted of receiving stolen property for immigration purposes.
II. DETERMINING WHETHER A CRIME INVOLVES MORAL TURPITUDE
As a general rule, a crime involves "moral turpitude" if it is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. Moral turpitude is generally defined as acts or omissions that are so far contrary to the moral laws, so base or vile as to be contrary to the accepted and customary rule of right and duty between people. Jordan v. DeGeorge, 341 U.S. 223, 71 S.Ct. 703 (1951). Neither the seriousness of the offense or the severity of the sentence imposed is determinative of whether a crime involves moral turpitude. It is rather a question of the offender's evil intent or corruption of the mind. Matter of Khourn, 21 I. & N. Dec. 1042 (BIA 1997). Conviction for distribution of cocaine is a conviction for CIMT where knowledge or intent is an element of the offense and evil intent exists. Matter of Serna, 20 I. & N. Dec. 579 (BIA 1992). A crime involving moral turpitude is an act which is per se morally reprehensible and intrinsically wrong or malum in se. Id. A conspiracy to commit an offense involves moral turpitude when the underlying substantive offense is a CIMT. Matter of Bader, 17 I. & N. Dec. 525 (BIA 1980); see also Pichardo v. INS, 104 F.3d 756 (5th Cir. 1997).
