Post-Conviction Relief for Immigrants
§ 7.23 2. The Felony/Misdemeanor Distinction in Immigration Law
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The availability of an immigration benefit depends on whether the immigrant has a felony conviction in a number of immigration contexts. For example, one felony conviction will disqualify the immigrant from obtaining the benefits of the Family Unity Program, the Legalization Program, the Special Agricultural Workers Legalization Program, and Temporary Protected Status. Reduction of a felony to a misdemeanor may also help an immigrant qualify for political asylum and withholding of deportation, also known as “restriction on removal.”
In other important contexts, an immigration disaster can be triggered by a “felony” conviction that would be avoided if the conviction were instead considered a misdemeanor. For example, a state felony controlled substances conviction constitutes an aggravated felony for illegal re-entry sentencing purposes, and for purposes of triggering removal. A “crime of violence” that does not have as an essential element the use or threat of force can constitute an aggravated felony only if it is a felony conviction.[68]
Reduction of a felony to a misdemeanor conviction will prevent removability on the basis of the following aggravated felony theories:
(1) A conviction must be a felony before it can constitute a “crime of violence” under 18 U.S.C. § 16(b), where the statute has no element requiring threat or use of force, but the offense is considered a “crime of violence” only because there is a substantial risk that force will be used in the commission of the offense. See § 7.24, infra.
(2) If a state drug conviction of first-offense simple possession of a controlled substance is a misdemeanor conviction only, that will prevent it from constituting an aggravated felony in criminal court for purposes of enhancing a federal sentence for illegal re-entry after deportation or in removal proceedings.[69] Note an exception to this rule in the Second, Third, and Ninth Circuits. See § 7.25, infra.
[68] 18 U.S.C. § 16(b).
[69] United States v. Ibarra-Galindo, 206 F.3d 1337 (9th Cir. 2000); Matter of Yanez, 23 I. & N. Dec. 390, 394 (BIA 2002) (en banc).
