Definition of Felony.  The Board of Immigration Appeals held, in Matter of Crammond,[60] that a conviction for “murder, rape, or sexual abuse of a minor” must be a felony offense to be considered an aggravated felony under INA § 101(a)(43)(A).[61]  Under Crammond, the BIA applied the federal definition of a felony set forth at 18 U.S.C. § 3559(a)(5).  Under that definition, a “felony” is an offense for which the maximum term of imprisonment is “more than one year.”[62]  Even though Crammond itself has been reversed,[63] its reasoning will very likely continue to be used to determine what is a misdemeanor, and what is a felony, under immigration law.  Moreover, the U.S. Sentencing Guidelines define “felony” to include “any federal, state or local offense punishable by imprisonment for a term exceeding one year.”[64]  Therefore a misdemeanor with a possible maximum term of imprisonment of one year does not constitute a felony, for immigration purposes, even if a sentence of one year is imposed.  See also § 7.14, supra.

 

            There are three major immigration benefits of obtaining a court order reducing a felony to a misdemeanor, or a misdemeanor to an infraction.  These benefits include avoiding immigration damage, or obtaining an immigration benefit, that depends on:

(1)   whether the immigrant has a felony conviction,

(2)   whether the immigrant has a certain number of misdemeanor convictions, or

(3)   whether the maximum custody for an offense is one year or less.

 

            For example, if an immigration consequence depends on whether the defendant has a felony conviction, the granting of the motion to reduce a felony to a misdemeanor will avoid the negative immigration consequence and qualify the immigrant for the immigration benefit.  If an immigrant’s conviction can have no more than a one-year possible sentence in order to qualify for an immigration benefit, reduction of a felony to a misdemeanor will reduce the maximum possible sentence from a state prison sentence greater than one year, to a one-year maximum possible misdemeanor sentence, thus enabling the immigrant to obtain the immigration benefit.  If a certain number of misdemeanor convictions will disqualify an immigrant from eligibility for a certain immigration benefit, successfully reducing a misdemeanor to an infraction can avoid the disqualification.

 

[60] Matter of Crammond, 23 I. & N. Dec. 9 (BIA 2001), vacated by 23 I. & N. Dec. 179 (BIA 2001).

[61] Ibid.; INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A) (Supp. V 1999).

[62] 18 U.S.C. § 3559(a)(5).  Compare 18 U.S.C. § 3559(a)(6) (a Class A misdemeanor is an offense with a maximum sentence of “one year or less but more than six months”).

[63] Matter of Small, 23 I. & N. Dec. 448 (BIA 2002) (en banc).

[64] U.S.S.G. § 2L1.2, Application Note 1.

Lower Courts of Ninth Circuit

CAL POST CON - WOBBLER - SENTENCE ENHANCEMENT
People v. Feyrer, 151 Cal.App.4th 506 (Cal.App. 2 Dist. May 29, 2007) (trial court may reduce a felony "wobbler" offense to a misdemeanor despite the admission of an enhancement that a defendant inflicted great bodily injury in the commission of the offense).