9 FAM 302.3-2(B)(6) (U) The Sentencing Exception
a. (U) Provisions Of INA 212(a)(2)(A)(ii)(II): A conviction or admission of the commission of a crime of moral turpitude will not serve as the basis of ineligibility under INA 212(a)(2)(A)(i)(I) under the sentencing exception (also known as the petty offense exception), if the following conditions have been met:
(1) (U) The applicant has been convicted of or has admitted to the commission of only one crime involving moral turpitude; and
(2) (U) The maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed, see 9 FAM 302.2-2(B)(4)) did not exceed imprisonment for one year; and
(3) (U) If the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of six months.
b. (U) Applying The Sentencing Exception: The language that the alien was not sentenced to a term of imprisonment in excess of six months refers to how long the alien was originally sentenced for, regardless of the extent to which the sentence was ultimately executed. The “term of imprisonment” that you need to analyze constitutes the specific sentence meted out by the court prior to the imposition of any suspension. For example, if a court imposes a sentence of nine months of imprisonment, but suspends all nine months and imposes two years of probation, the alien cannot benefit from the sentencing exception because the nine months term of imprisonment exceeds the statutory six months maximum. Because you will need to analyze what sentence was originally handed down by the court, you may require that the applicant provide you with a copy of the sentencing provisions that accompany the statute under which he or she was convicted, as well as the court records which show what the original sentence was. See 9 FAM 302.3-2(C).
c. (U) Applicability Of Law, Foreign Or Domestic, Relevant To Crime: In assessing the applicability of this provision to an applicant who has admitted the commission of acts constituting a crime of moral turpitude (rather than being convicted), it is necessary only to look to the law, foreign or domestic, of the jurisdiction where the acts were committed. It is not necessary to refer to federal or other U.S. standards to distinguish between felonies and misdemeanors.
d. (U) Early Release, Parole: An applicant whose imposed sentence exceeds imprisonment for a period of six months cannot receive consideration under the sentencing exception even though the applicant was released early on parole or for good behavior. (See 9 FAM 302.3-2(B)(6) paragraph b above.)
e. (U) Applying the Sentencing Exception: Since the sentencing exception is to be applied retrospectively as well as prospectively, aliens previously found to be inadmissible under INA 212(a)(2)(A)(i)(I) might no longer be inadmissible under the terms of a statute if that statute is amended or changed. All visa applications, therefore, must be assessed under the current statute without regard to any previous finding(s) of inadmissibility.
f. (U) Distinguishing Between Single Offense And Single Conviction: The INA language requires that the sentencing exception is applicable only if the alien has committed only one crime involving moral turpitude. You must determine, as a matter of fact, whether despite the fact that there is a single conviction, the alien may have committed more than one crime involving moral turpitude.
(1) (U) Multiple Counts: An alien convicted on two counts involving moral turpitude in one indictment is ineligible for the sentencing exception even though only one conviction exists and the two offenses constituted a single scheme of criminal misconduct.
(2) (U) Relevant Facts: In Matter of S. R., 7 I&N Dec. 495; Matter of DeM., 9 I&N Dec. 218, it has been held that when an alien’s conviction has been expunged under a state expungement proceeding, you may use the conviction as evidence that the alien committed more than one crime of moral turpitude and is therefore ineligible for relief under the sentencing exception.
Basicamente, usted entra en la exception porque la sentencia para los dos era menos de 5 años.
Le deseo buena suerte.