WHAT A DIFFERENCE A DAY MAKES! – California Misdemeanor Maximum Penalty Reduction from 365 to 364 Days Brings Relief To Some Noncitizens

By Steven J. Malm and Nancy E. Miller

The Governor of California recently signed into law a bill reducing the maximum penalty for misdemeanors from 365 days to 364 days.  The law takes effect on January 1, 2015. The change comes as welcome news to immigrant advocates and many noncitizens with low-level criminal convictions that will benefit and avoid removal under the new law.  
Throughout the United States, Federal and state law define misdemeanors as crimes for which persons may receive a punishment of no more than one year’s incarceration.  However, in some states the maximum penalty is 365 days, in others it is 364 days.  That extra day carries great importance in United States immigration law and can make the difference between being removed from and remaining in the United States.  There are many grounds under which a noncitizen may be deemed either inadmissible or deportable.  What is the difference between the two?  That is for another article.
Suffice it to say that being inadmissible or deportable can prevent one from living in the United States.  One ground results from convictions for crimes involving moral turpitude (CIMTs).  CIMTs are crimes that are not just illegal but also morally wrong.  Theft, aggravated assault and fraud offenses are a few examples.  Under the change in law, a conviction for one misdemeanor CIMT will not result in inadmissibility for noncitizens on the CIMT ground (although it could on other grounds).  Noncitizens become deportable for a conviction of one CIMT committed within five years of admission if the crime has a potential sentence of one year or more.  Because many California misdemeanors carry a maximum punishment of 365 days, this section has made many noncitizens deportable for low-level crimes.  The change in law remedies this outcome.  
Some crimes (including those involving theft or violence) that are misdemeanors under California law can be an aggravated felony under immigration law if the sentence imposed is a year or more. So, a theft conviction with a sentence of 364 days is not an aggravated felony but the same theft conviction with a sentence of 365 days is.  This is true even if the sentence is suspended and the non-citizen does not spend one day in jail.  Aggravated felonies can make deportation virtually automatic.  The new law can help prevent non-citizens from suffering an aggravated felony conviction for a less-serious offense.    
Due to the change, many noncitizens will no longer be disqualified from relief from removal.  Establishing that a noncitizen is removable from the United States is only the first step in the process of removing a noncitizen.  The next is relief.  Noncitizens who otherwise meet eligibility requirements may file applications for cancellation of removal.  By law, however, non-permanent residents with one CIMT conviction for which a one-year sentence may be imposed do not qualify.  Due to the 365-day maximum penalty for misdemeanors in California, here again many noncitizens with low-level crimes could not fight their removal through cancellation.  Thanks to this important change, now they will be able to do so.
Certain misdemeanors are always considered aggravated felonies regardless of sentence.  Such crimes include sexual abuse of a minor, slavery, and trafficking in persons.   Other convictions involving drugs carry their own grounds of inadmissibility and deportability. Sentences in these cases are irrelevant.    Additionally, a crime that is categorized as a CIMT can also render one inadmissible, deportable or ineligible for relief under other sections of the law.  So, for example, a noncitizens could still be deportable or ineligible for relief for specific convictions relating to domestic violence, including stalking, child abuse, and child neglect, firearms, multiple convictions, drug trafficking, money laundering, and others, even if they have avoided the negative ramifications of a CIMT conviction for that crime.  
The change in law is enormously beneficial in a few contexts, but is not a panacea.  For noncitizens, criminal cases should always be viewed through immigration lenses.  Carefully-crafted plea agreements should always take immigration consequences into account.  The most skilled criminal defense lawyers know that immigration is not their forte.  They often recommend that the noncitizen hire a knowledgeable immigration attorney to work with them to get the best results in both arenas.  It is good advice and should be followed.  
A final consideration is that, while the law will take effect on January 1, 2015, we don’t know whether the effect will be retroactive.  It might only apply to post January 1, 2015 convictions.  
Before and after that date, all noncitizens facing criminal charges should not agree to any resolution of the pending charges until they have consulted with an immigration attorney who is both knowledgeable and experienced in immigration criminal defense.