Criminal Defense of Immigrants


§ 10.77 (D)

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(D)  Effect on Sentence of Reduction From Felony to Misdemeanor. Established BIA law treats a modified sentence as the final and governing sentence for immigration law purposes.  See § 11.10, infra.  If a court reduces a felony conviction to a misdemeanor, under circumstances in which the new maximum sentence for the misdemeanor becomes less than one year, the conviction will no longer trigger the one-CMT ground of deportation.[326]  For example, in California, a conviction of an attempt carries a maximum of one-half the maximum for the substantive offense.[327]  If an immigrant pleaded guilty to attempted burglary, as a felony, the maximum would be 18 months in state prison.  If the level of the offense was reduced to a misdemeanor under California Penal Code § 17(b)(3), the maximum for the burglary itself would be one year, so the maximum for attempted burglary as a misdemeanor would be six months, which is not long enough to trigger the one-CMT ground of deportation.[328]  Reduction from a felony to a misdemeanor punishable by one year, however, will not prevent the noncitizen from being deportable under the one-CMT ground, since it is not the actual sentence, but the maximum possible sentence that controls for that purpose.[329]


[326] See LaFarga v. INS, 170 F.3d 1213 (9th Cir. 1999) (order reducing felony to misdemeanor had effect of reducing maximum to one year in custody, which was low enough to qualify the noncitizen for the petty offense exception to inadmissibility, which required a one-year maximum).

[327] California Penal Code § 664(b).

[328] Garcia-Lopez v. Ashcroft, 334 F.3d 840 (9th Cir. June 26, 2003) (immigration court must give effect to state-court reduction of California ‘wobbler’ offense from a felony to a misdemeanor; reductions of sentences by state courts are qualitatively different from state expungements; in modifying sentence, state court is determining the nature of the conviction pursuant to state law).  See also United States v. Landeros-Arreola, 260 F.3d 407 (5th Cir. July 27, 2001) (sentence reduction in four-year term of imprisonment originally imposed for state menacing conviction, after successful completion of Colorado’s Regimented Inmate Training Program, was not mere suspension of execution of sentence, but effectively reduced sentence from imprisonment to probation).

[329] Aquino-Encarnacion v. INS, 296 F.3d 56 (1st Cir. July 23, 2002) (initial sentence to probation for one year, reduced to 11 months’ probation, still qualifies as a crime for which a sentence of one year or longer may be imposed).  Accord, United States v. Qadeer, 953 F.Supp. 1570, 1580 (S.D.Ga. 1997).  See § 20.32, infra.