By Attorney Eric R. Welsh and Nancy E. Miller
A criminal conviction can have devastating consequences for a non-citizen. A conviction can trigger deportation from the United States or bar admission or naturalization. When the immigration laws do not provide relief, an immigrant with a conviction may need to challenge the conviction itself.
Two recent developments in California have made it possible for some immigrants with criminal convictions to seek immigration relief or avoid disastrous consequences. The first was the enactment of section 18.5 of the California Penal Code. Section 18.5 defines a “misdemeanor” as an offense with a maximum sentence of 364 days (i.e., less than one year). For immigration purposes, this change can dramatically help immigrants convicted of minor offenses in a number of ways. For example, a noncitizen convicted of a crime involving moral turpitude within five years of admission is deportable, if the crime has a potential sentence of one year or more (regardless of the actual sentence). By reducing the maximum possible sentence to 364 days, a single California misdemeanor conviction will not result in deportability under this ground.
In a previous article, we discussed an amendment to section 18.5 that made the revised definition of a “misdemeanor” apply retroactively, regardless of the date of conviction. Prior to that amendment, the “364” maximum only applied to misdemeanor convictions after 18.5 became effective (January 1, 2015). With the amendment, all misdemeanors are redefined to have maximum sentences of 364 days, regardless of the date of conviction. If a person was actually sentenced to a term of 365 days, that person can now make an application to the Superior Court for a sentence modification. With the passage of section 18.5 and the recent amendment, many non-citizens may now avoid deportation or avail themselves of relief that was previously out of reach.
The second major development is the passage of Proposition 47. Prop 47, also known as “The Safe Neighborhoods and Schools Act,” was enacted by popular vote on November 4, 2014. The Proposition by its nature acts retroactively: it created a process for persons who have completed a qualified felony sentence to apply to the Superior Court for reclassification of the crime as a misdemeanor. Only certain felony offenses qualify for reclassification, including: certain drug possession felonies, petty theft, receipt of stolen property, and forging bad checks. Any person convicted of a felony for those crimes can apply for misdemeanor reclassification, but must do so by November 4, 2017.
The California Supreme Court is currently deciding a case involving the interplay between Prop 47 and guilty pleas. In the case before the court, a defendant named Morris Harris was charged with felony robbery, but prosecutors agreed to drop that charge in exchange for Harris’s agreement to plead guilty to felony theft with a sentence of six years in prison. When Prop 47 passed, Harris still had three years left on his sentence. He applied to reduce the crime to a misdemeanor and sought release from prison. Prosecutors argued that if Harris’s conviction for theft is reduced, they should be allowed to re-try him for robbery. The court has not yet issued a decision, but at oral arguments earlier this month, the justices expressed a reluctance to reopen cases that were resolved with plea agreements. If the arguments are any indication, the court will likely uphold prior plea agreements, even if the crimes are reclassified as misdemeanors.
With both of these developments, a noncitizen with a qualifying felony conviction can now seek to reclassify the conviction as a misdemeanor with a maximum possible sentence of 364 days. Crimes that once posed permanent bars or triggered deportability can now be reduced to offenses that either have no immigration consequences or are eligible for a waiver.
Any noncitizen with a criminal record should consult a knowledgeable and experienced immigration attorney to see whether these developments or any other options exist to challenge the conviction or mitigate its consequences.