Relief for Immigrants with Old Misdemeanor Convictions

By Attorneys Ben Loveman & Nancy E. Miller

CAJ0019BOn September 28, Governor Brown signed Senate Bill-1242 to little fanfare. The new law amends California Penal Code Section 18.5 which had lowered the maximum penalty under California law for a misdemeanor, unless otherwise specified, from 365 to 364 days.  The amendment makes this section retroactive meaning that those persons who were sentenced prior to the enactment of Section 18.5 can now benefit. This seemingly small change will make a huge difference to the lives of thousands of persons seeking immigration benefits or hoping to avoid deportation. For some, it will mean the difference between a lifetime ban on becoming a United States citizen and now being able to apply for naturalization.  For others, it could provide a post-deportation route back to the United States or an avenue to reopen a final order of removal.  To understand the impact of this law we should first review the legislative purpose behind the original Penal Code Section 18.5.

Section 18.5, which passed in 2014 and became effective January 1, 2015, was introduced as a means to stop convictions for relatively minor violations of California law from serving as a basis for deportation or as a bar to naturalization or permanent residence. The law sought to fix this problem by aligning the punishment for misdemeanors under California law with the punishment for misdemeanors under Federal law. Prior to the change, misdemeanors in California such as shoplifting could be punished by up to 365 days. Federal law only allowed for punishment of up to 364 days. While this one-day difference is obviously not a big deal in terms of the actual period incarceration, it made a world of difference under U.S. immigration laws.

For immigration purposes many minor crimes coupled with a sentence or possible sentence of 365 days are considered aggravated felonies regardless of actual time served or whether the person was released on probation without serving time. Aggravated felonies are absolute bars to becoming a United States citizen and to applying for relief from deportation through cancellation of removal and in many cases bar applications for adjustment of status to lawful permanent resident status.  Furthermore, certain relatively minor crimes will be considered grounds for deportation as crimes involving moral turpitude if a sentence of 365 days is imposable  regardless of the actual sentence imposed. Thus an unsuspecting person might plead guilty to a misdemeanor, receive probation, and a 365-day suspended sentence and think they are getting a great deal as they do not  spend a single day in jail.   The same person could learn the next day that the agreement they entered into has forever foreclosed naturalization, has led to removal proceedings and left them with no defense from deportation.

Penal Code Section 18.5’s cap on misdemeanor sentences at 364 days ensures that low-level and mostly non-violent offenses will not be used to deport long-time residents or preclude citizenship or adjustment of status. However, the new law, in its original form, only helped those convicted after January 1, 2015  The amendment passed this month rectifies this oversight and will give new hope to thousands of non-citizens with misdemeanor convictions under California law.

The amended version of the law provides that any conviction for misdemeanor whether before or after January of 2015 is punishable by a maximum of up to 364 days.  For those who were actually sentenced to a term of 365 days, regardless of time spent in custody or whether the sentence was suspended, the person must make an application to the Superior Court where they were convicted for a modification of their sentence from 365 to 364 days.

The new law has the power to impact countless families with loved ones whose California convictions have served as a barrier to legal status or as a basis for deportation proceedings or ineligibility for relief from removal.  Many persons who can be helped under the new law have probably been told many times over the years that their criminal history cannot be overcome and may have given up hope for their case. That is why we urge you to bring this important development to the attention of your family and friends or anyone you know who you believe it might help.  It is critical that a fresh look be taken at these cases to determine if a person is now eligible to seek citizenship, apply for a green card, apply for relief from removal, or even reopen an old removal or deportation order based on this change in law.

If you or a loved one might benefit from this change please contact a reputable and experienced immigration attorney immediately to discuss the potential benefits of this new law to your case.