Rejecting the Government’s argument to the contrary, the Board of Immigration Appelas held In the Matter of Juan-Emigdio-Giron has held that the sentencing guideline maximum sentence trumps the statutory maximum sentence for purposes of the petty offense exception. That petty offense exception holds that an individual is not inadmissible or removable from the US based on a conviction where less than six months of incarceration was actually imposed (suspended sentences count) and the maximum sentence did not exceed one year. In this case, while more than one year could have been imposed, the state statutory guidelines limited the maximum sentence to seven months.

It is unclear how the US Supreme Court’s ruling in Alleyne v United States (invalidating many sentencing guideline schemes) impacts this.  With thanks to the Immigration and Refugee Appellate Center for pointing this ruling out.