California’s Criminal Immigration Reform

As of January 2015, a new Californian law will reduce the maximum possible sentence for a misdemeanor from 365 to 364 days. The single day reduction will remain a seemingly inconsequential change for United States citizens; however, the law, S.B. 1310, will have a drastic impact on the lives of noncitizens convicted of misdemeanor offenses.

Under the previous law, many misdemeanors were punishable by up to one year in prison. “That one year sentence, or even the possibility of a one year sentence,” can have a significant impact on a noncitizen’s immigration status. This is because the basis of deportation is not the actual length of the sentence, but rather is contingent on whether an offense is "punishable by a year or more."  Because sentences of exactly one year created this one-day overlap in definitions, many California misdemeanors were deportable offenses under the prior version of the law, even if they are relatively minor and resulted in little or no jail time.

There are many types of offenses that may result in deportation. For example, a "crime involving moral turpitude" is a deportable offense if "punishable by a year or more." Not only is the basis of deportability important by itself, but it “renders people ineligible for a very important deportation defense called cancellation of removal for certain nonpermanent residents.”

Under the new law, California misdemeanors will no longer be punishable by a full year, and thus the possible outcome of deportation will no longer apply for misdemeanors. It should be noted that there are many other grounds of deportation, including one for multiple crimes involving moral turpitude, regardless of the length of potential sentence, as well as “aggravated felonies.”

Aggravated felonies carry more severe immigration consequences. Not only are aggravated felonies deportable offenses, but they also remove nearly all possible defenses to deportation.    For a crime to constitute an aggravated felony, a state crime need not be “aggravated” or a “felony” because federal law does not distinguish between felony and misdemeanor crimes under state law.

“When Congress initially created the term, it included only murder, federal drug trafficking, and illicit trafficking of certain firearms and destructive devices.”  However, recently Congress has expanded several offenses listed in the Immigration and Nationality Act, which includes even minor crimes that carry a sentence of 365 days or more. As a result, a misdemeanor which qualifies under one of the descriptions for such minor offenses is still considered an aggravated felony.

Reducing the maximum possible sentence for misdemeanors to 364 days will therefore prevent many of those convictions from becoming crimes involving moral turpitude or aggravated felonies. Noncitizens with minor criminal convictions will no longer be subject to deportable provisions and, perhaps more critically, will have the opportunity to seek relief from removal.

However, there remains some exceptions regarding the sentencing length of misdemeanors and subsequent deportation concerns. The deportation consequences of some aggravated felonies and crimes involving moral turpitude do not depend on the length of sentence at all. Therefore, certain California misdemeanors may still result in deportation under the new law.

Following the implementation of this new law come January, the reduction of misdemeanor sentences to 364 days will help foreign nationals facing minor criminal charges. Some Californian misdemeanors will still seriously jeopardize immigration statuses and possibly result in deportation under the new law. Thus, it is important for foreign nationals to consult with experienced criminal and immigration counsel before accepting any plea.

Michael Coburn
Staffer, Criminal Law Practitioner

Photo by Devin Cook via Wikipedia.