The 364-day sentence
Several entries on the aggravated felony list turn on a sentence of at least one year, and a sentence of 364 days is below the line. A suspended year is a year. Time actually served is irrelevant. New York rewrote its misdemeanor maximum around this one day in 2019; in New Jersey, Florida and federal court the request has to be made out loud. This page covers the one-year line, the six-month, 180-day and five-year lines that sit near it, and how each jurisdiction structures the sentence.
Current as of October 2026. We re-check this page regularly and after any rule change.
The sentence is the second of the five moving parts on the plea strategy page, and it is the one a prosecutor is most often willing to move. A plea to the same count, with the same facts, becomes a different case when the number changes. This page is the numbers: where each line is, what sits on each side of it, and how the request is made in the courts where our attorneys practice.
Where the one-year line is
Five entries on the aggravated felony list in INA 101(a)(43) turn on the term of imprisonment the court ordered. A crime of violence under (F), a theft or burglary offense under (G), commercial bribery, counterfeiting, forgery or vehicle-identification trafficking under (R), and obstruction of justice, perjury or bribery of a witness under (S) are aggravated felonies only where the term of imprisonment is at least one year. Document fraud under (P) uses the phrase "at least 12 months," which is the same line. And (U) makes an attempt or conspiracy to commit any of them an aggravated felony on the same terms. The offense also has to fit the entry under the categorical approach; the sentence is the second half of the test, not the whole of it.
INA 101(a)(48)(B) supplies the definition of the sentence. A term of imprisonment includes "the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part." The words that matter are "ordered" and "regardless of any suspension." A one-year sentence suspended in full is a one-year sentence. A one-year sentence with credit for time served is a one-year sentence. What you actually spent in custody has no bearing on the entry.
364 days is one day short, and that is the point
"At least one year" means 365 days. A sentence of 364 days, whether served, suspended or split, is below it, and a theft, assault, forgery or obstruction plea with that sentence is not an aggravated felony under (F), (G), (R) or (S), whatever else it may be. The request is for the number, said in court and written in the judgment. "A year" is not the same request, and in Florida and federal court a misdemeanor maximum of one year means the court can lawfully impose the full 365.
The same day matters for detention. Under INA 236(c)(1)(C), a person deportable for a single CIMT under 237(a)(2)(A)(i) is subject to mandatory detention where the sentence imposed was at least one year. Below that, the CIMT ground alone does not trigger 236(c). The mandatory detention page covers the rest of that list.
"May be imposed" is a different question
Two provisions use a phrase that looks like a sentence threshold but is not. INA 237(a)(2)(A)(i) makes a single CIMT committed within five years of admission a ground of deportability where it is an offense "for which a sentence of one year or longer may be imposed." That is the statutory maximum for the offense, not what the judge gave you. A plea to an offense that carries a possible year is inside the ground even with a sentence of time served. Entry (J) of the aggravated felony list, RICO and gambling offenses, uses the same "may be imposed" language and works the same way.
The petty offense exception uses both ideas in one sentence. Under INA 212(a)(2)(A)(ii)(II), a single CIMT is outside the inadmissibility ground where the maximum penalty possible for the offense did not exceed one year and the sentence imposed did not exceed six months, regardless of suspension. The first half is about the statute; the second is about the judgment. Both have to be true, and only one offense gets the benefit. This is the reason a plea to an offense with a lower maximum can matter as much as the sentence itself, and the petty offense page explains how the two halves interact.
The other lines: six months, 180 days, five years
One year is the most consequential number, but it is not the only one, and a sentence that clears the aggravated felony line can still cross another.
| Line | What it decides | Which sentence counts | Authority |
|---|---|---|---|
| One year (365 days) | Whether a crime of violence, theft, burglary, forgery, counterfeiting, commercial bribery, obstruction or perjury conviction is an aggravated felony; whether a single-CIMT deportability ground carries mandatory detention | Term ordered, suspended time included | INA 101(a)(43)(F), (G), (R), (S); 101(a)(48)(B); 236(c)(1)(C) |
| 12 months | Whether document fraud under 18 U.S.C. 1543 or 1546(a) is an aggravated felony | Term ordered, suspended time included | INA 101(a)(43)(P) |
| Six months | Whether a single CIMT, on an offense with a maximum of one year, falls within the petty offense exception to inadmissibility | Sentence imposed, regardless of suspension | INA 212(a)(2)(A)(ii)(II) |
| 180 days | Whether confinement as a result of a conviction bars good moral character during the naturalization statutory period | Confinement actually served, 180 days or more, as a result of a conviction | INA 101(f)(7); 8 C.F.R. 316.10(b)(2) |
| Five years, aggregate | Whether multiple convictions are a separate inadmissibility ground; whether two or more offenses bar good moral character; whether an aggravated felony is per se a particularly serious crime for withholding of removal | Aggregate sentences to confinement; for withholding, aggregate term of imprisonment | INA 212(a)(2)(B); 101(f)(3); 241(b)(3)(B) |
The 180-day line is worded differently from the others. It is about confinement "as a result of" a conviction, and the regulation adds that a naturalization application will not be approved until any probation, parole or suspended sentence has been completed, under 8 C.F.R. 316.10(c)(1). The good moral character page and the naturalization page take it from there. The withholding line is on the asylee and refugee page.
How concurrent and consecutive sentences on multiple counts are added up for each of these lines is a separate question with its own case law, and a wrong guess would hurt in exactly the cases where it matters. If you have more than one count, the aggregate is a question to put to us with the judgment in hand.
How the four jurisdictions structure it
This section is about sentencing structure and how the request is made. It does not say which offenses in any state are aggravated felonies or CIMTs; that is the categorical question, and it is answered statute by statute.
New York
New York wrote the line into its own law. Under N.Y. Penal Law 70.15(1)(a), as amended in 2019, the maximum definite sentence for a class A misdemeanor is 364 days, and a deeming clause provides that a one-year sentence for a class A misdemeanor imposed before the amendment is treated as a sentence of 364 days. As we read the amendment, that is what it does, and the New York page covers it. A class B misdemeanor carries up to three months, and a violation up to 15 days and is not a crime under state law. For a felony plea, the request has to be made expressly: class E felonies carry up to four years, and a definite sentence has to be negotiated down to the number.
New Jersey
New Jersey has no felonies or misdemeanors. Crimes of the first through fourth degree are indictable; a fourth-degree crime carries up to 18 months, and a third-degree crime three to five years. Below the crimes are disorderly persons offenses, up to six months and prosecuted in municipal court, and petty disorderly persons offenses, up to 30 days. A disorderly persons offense therefore cannot carry a one-year sentence and cannot exceed the six-month petty-offense ceiling. A fourth-degree plea can carry a year and a half, so the 364-day request is made on the record. The New Jersey page covers the dispositions.
Florida
A first-degree misdemeanor in Florida carries up to one year, under Fla. Stat. 775.082. That is the trap: a misdemeanor plea with the maximum sentence is a one-year sentence, and a suspended one is a one-year sentence too. The request for 364 days must be explicit, and it must appear in the judgment. A second-degree misdemeanor carries up to 60 days, which is under both the six-month and the 180-day lines. A third-degree felony carries up to five years. The Florida page has the withhold-of-adjudication rules, which are a separate problem.
Federal court
Under 18 U.S.C. 3559(a), a class A misdemeanor is an offense with a maximum of one year or less but more than six months, and a felony is anything punishable by more than one year. A federal class A misdemeanor therefore allows a full 365-day sentence, and the 364-day request is made the same way it is in Florida. The federal offenses page covers the offenses that appear on the aggravated felony list by name.
Ask at sentencing, because afterward is too late
Under Matter of Thomas & Thompson, 27 I&N Dec. 674 (A.G. 2019), a sentence changed after the fact counts for immigration purposes only if the change was based on a procedural or substantive defect in the original sentencing. A judge who later agrees to knock a day off to help with immigration has not changed the immigration result. The number has to be right the first time, and it has to be in the judgment, not only in the conversation. The sentence modification page explains the narrow exception.
Read next: immigration-safer pleas, aggravated felonies, the petty offense exception, or good moral character.
Common questions
My sentence was one year but all of it was suspended. Does that count?
Yes, as a one-year sentence. Under INA 101(a)(48)(B), a reference to a term of imprisonment means the period the court ordered regardless of any suspension of its imposition or execution, in whole or in part. A one-year sentence with no day served is a one-year sentence for the aggravated felony entries that turn on the term of imprisonment. Probation alone is not a term of imprisonment, but a suspended term imposed with probation is.
Is 364 days enough on its own?
It keeps a theft, burglary, crime of violence, forgery, counterfeiting, commercial bribery, obstruction or perjury plea below the one-year threshold in INA 101(a)(43)(F), (G), (R) and (S). It does nothing for grounds that do not depend on the sentence: a controlled-substance conviction, a firearms conviction, a crime of domestic violence, or a CIMT that the offense itself supplies. And 364 days is well above the six-month line for the petty offense exception and the 180-day line for good moral character. Match the number to the ground.
What does 'a sentence of one year or longer may be imposed' mean?
That phrase, in INA 237(a)(2)(A)(i), is about the maximum sentence the statute allows, not the sentence you received. A single CIMT within five years of admission is a ground of deportability if the offense carries a possible sentence of one year or more, even if you were sentenced to nothing. The RICO and gambling entry in 101(a)(43)(J) uses the same 'may be imposed' language. Read each entry before assuming the threshold works the same way.
Can the sentence be reduced later to get under the line?
Only for a reason the immigration court will honor. Under Matter of Thomas and Thompson, 27 I&N Dec. 674 (A.G. 2019), a sentence modification is given effect for immigration purposes only if it was based on a procedural or substantive defect in the original sentencing. A reduction granted to avoid immigration consequences is not. That is why the request is made at sentencing, not afterward.
Tell us about the charge before you take the plea. Not after.
You get a free conversation with an immigration attorney, in your language. We speak English, Russian, Spanish and Uzbek in-house, and we bring in a live interpreter for anything else. We will read the charge against the immigration statute, tell you what the offered plea does to your status and to every form of relief, and tell you what to ask your criminal lawyer to negotiate instead. If the plea has already been entered, we will tell you what can still be done.