Criminal Defense of Immigrants

 

(C)  Specific States. For example, in California, certain misdemeanor offenses, notably petty theft[71] can be prosecuted as misdemeanors or infractions.[72]  The infraction is similar to the Oregon petty offense procedure held in Eslamizar not to be a conviction in several important respects:

 

                (1)  “An infraction is not punishable by imprisonment.”[73]

 

                (2)  “A person charged with an infraction shall not be entitled to a trial by             jury.”[74]

 

                (3)  There is no right to the assistance of court-appointed counsel.[75]

 

Although the defendant must be proved guilty beyond a reasonable doubt,[76] on balance, the California infraction procedure cannot be said to be a criminal procedure, because of the reasons stated above.  In Eslamizar, the Board en banc held “that by ‘judgment of guilt’ Congress most likely intended to refer to a judgment in a criminal proceeding, that is, a trial or other proceeding whose purpose is to determine whether the accused committed a crime and which provides the constitutional safeguards normally attendant upon a criminal adjudication.”[77]  Even though the burden of proof for an California infraction is beyond a reasonable doubt, that single factor should be insufficient to convert a proceeding without the right to a jury trial, without the right to appointed counsel, and for which no jail sentence is permissible, into “judgment in a criminal proceeding, that is, a trial or other proceeding whose purpose is to determine whether the accused committed a crime and which provides the constitutional safeguards normally attendant upon a criminal adjudication.”[78]  Therefore, an infraction under California law should not be considered a criminal conviction, for immigration purposes, under Eslamizar.

 

Oregon.  See § 7.24(A), supra.

 

                Minnesota.  A Minnesota petty misdemeanor is not a “misdemeanor” as defined for Temporary Protected Status,[79] because the court may not impose a sentence in excess of five days in custody for this type of offense.  In fact, no jail time at all may be imposed for this class of offense.[80]  The Minnesota Rules of Criminal Procedure provide that any offense shall be deemed a conviction for a petty misdemeanor if the sentence imposed upon a plea or finding of guilty is within the limits of the maximum sentence allowable for a petty misdemeanor.[81]  Accordingly, any conviction with a sentence imposed of a fine of $300.00 or less constitutes a “petty misdemeanor” which is not a criminal conviction and which is punishable “by imprisonment for a term of five days or less.” Therefore, counsel may argue that this class of offense does not arise to the level of a “crime.”[82]

 

                Missouri.  In Missouri, the offense of violating a city charter, even though termed a “misdemeanor,” is arguably not a “crime” since it is not subject to the Governor’s pardon power.[83]  In Missouri, the Governor of the State has pardon powers.[84]  However, the Missouri Supreme Court held that the Governor of the State does not have power of pardon over a “municipal offense.”[85]  The mayor of a municipality enjoys this power over municipal offenses on a limited basis.[86]  The immigration statute, however, does not provide the mayor’s pardon power can eliminate the immigration consequences of a municipal offense.[87]  Thus, the BIA held the misdemeanor City Charter convictions cannot be regarded as “crimes” for immigration purposes.[88]  See also § 7.26, infra, for an argument that local offenses are not listed under various conviction-based grounds.

[71] California Penal Code § § 484(a), 488.

[72] California Penal Code § § 17(d), 19.8 (giving list of offenses).

[73] California Penal Code § 19.6.

[74] Ibid.

[75] Ibid.

[76] See California Penal Code § 19.7 (“. . . all provisions of law relating to misdemeanors shall apply to infractions including . . . burden of proof.”).

[77] Matter of Eslamizar, 23 I. & N. Dec. 684, 687 (BIA Oct. 19, 2004).

[78] Ibid. (emphasis supplied).

[79] 8 C.F.R. § 244.1 (offenses that are punishable by imprisonment for a term of five days or less shall not be a misdemeanor).

[80] Minnesota Statute § 609.024(a); State v. Tessema, 515 N.W.2d 626 (Minn. App. 1994).

[81] Minn. R. Crim. Pro. 23.02.

[82] Thanks to Bruce Nestor.

[83] See Matter of Cevallos, 12 I. & N. Dec. 750 (May 27, 1968) (one of the definitions of a “crime” is based on whether the “crime” is subject to the Governor’s pardon powers).

[84] Missouri Constitution, Art. IV, § 7.

[85] Ex Rel Kansas City v. Renick, 157 Mo. 292, 57 S.W. 713 (1900).

[86] See R. S. Mo. § 77.360 (“The mayor shall have power to remit fines and forfeitures and to grant reprieves and pardons for offenses arising under ordinances of the city; but this section shall not be so construed as to authorize the mayor to remit any costs which may have accrued to any officer of the city by reason of any prosecution under the laws or ordinances of said city.”)

[87] INA § 237(a)(2)(A)(vi) (“pardons to be granted by President of the United States or Governor of any of the Several States”).

[88] But see Matter of W, 4 I. & N. Dec. 401 (1951) (violation of a City Ordinance relating to prostitution deemed to be a crime or misdemeanor involving moral turpitude under the Immigration Act of Feb. 5, 1917). Thanks to Raymond R. Bolourtchi.