Aggravated Felonies
§ 6.23 B. Effect of Reduction to Misdemeanor
For more text, click "Next Page>"
The Ninth Circuit has held that an alternative felony-misdemeanor, which was reduced to a misdemeanor after successful completion of probation, became at that time a misdemeanor with a one-year maximum sentence for purposes of the petty offense exception to inadmissibility under immigration law.[296] This is also consistent with the rule that it is the final sentence that counts for immigration purposes, rather than the initial sentence.[297] See § 6.25, infra.
[296] LaFarga v. INS, 170 F.3d 1213, 1215 (9th Cir. 1999); Garcia-Lopez v. Ashcroft, 334 F.3d 840 (9th Cir. June 26, 2003) (immigration court must give consideration to state court reduction of California ‘wobbler’ offense from a felony to a misdemeanor offense. Reductions of sentences by state courts are qualitatively different from state expungements. In modifying a sentence, the state court is determining the nature of the conviction pursuant to state law).
[297] Matter of Martin 18 I. & N. 226 (BIA 1982) (correction of illegal sentence); Matter of H, 9 I. & N. Dec. 380 (BIA 1961) (new trial and sentence); Matter of J, 6 I. & N. Dec. 562 (AG 1956) (commutation by Board of Pardons and Paroles).
