Criminal Defense of Immigrants


§ 10.92 (A)

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(A)  Definition of Misdemeanor.  Under immigration law, for purposes of adjustment of status,[374] a misdemeanor is defined as a crime punishable by a maximum term of one year or less, with two exceptions:


(1)  A criminal offense punishable by a maximum sentence of five days or less constitutes an infraction; and


(2)  If the state designates a state conviction as a misdemeanor, and the sentence actually imposed is one year or less, the conviction is considered by the DHS to be a misdemeanor conviction even if the state maximum potential sentence is greater than one year.[375]


While the regulation that contains this definition applies specifically to adjustment of status, there appears to be no reason for the immigration courts not to apply this definition wherever the term “misdemeanor” appears in the immigration statutes and regulations.


                In California, and many other states, the maximum period of confinement for a misdemeanor is one year, by statute,[376] so in those states this regulation does not appear to confer any benefit. 


                In the few states, however, in which the maximum punishment for a misdemeanor is greater than one year in custody,[377] this regulation would enable the noncitizen to avoid a conviction being considered to be a felony, for purposes of adjustment of status, if (a) the state designates the conviction as a misdemeanor, and (b) the sentence imposed is one year or less.


                The federal definition of felony is an offense for which the maximum sentence is in excess of one year.[378]  In Lopez v. Gonzales, the Supreme Court adopted a uniform national definition of felony, for purposes of determining whether a conviction constituted a drug trafficking aggravated felony, that uses federal criminal law as the test. [379]  If this same approach is used, the term misdemeanor, for immigration purposes, would mean a criminal offense with a maximum possible term of imprisonment of one year or less.

[374] See § 24.2, infra.

[375] See § 8 C.F.R. 245a.1(o), (p), and Comments, published at 53 Fed.Reg. 9,862-4 (Mar. 28, 1988).  See also United States v. Bridgeforth, 441 F.3d 864 (9th Cir. Mar. 29, 2006) (California conviction of assault with a deadly weapon, in violation of Penal Code § 245(a)(1) or (2), in which probation was terminated and the court imposed a sentence of 365 days in county jail, was a wobbler which then became a misdemeanor “for all purposes” under Penal Code § 17(b)(1), and therefore did not subject the defendant to the federal career offender enhancement of U.S.S.G. § § 4B1.1-4B1.2, because it was a misdemeanor under California law), following United States v. Robinson, 967 F.2d 287, 292-93 (9th Cir. 1992) (California wobbler with imposition of sentence suspended, and three years’ probation on the condition of service of nine months in jail, did not constitute a judgment imposing a punishment of imprisonment for a term not exceeding one year, and so did not render the conviction a misdemeanor under California law).

[376] E.g., California Penal Code § 17(a).

[377] See § 10.87(B), supra.

[378] United States v. Robles-Rodriguez, 281 F.3d 900 (9th Cir. 2002).

[379] Lopez v. Gonzales, 549 U.S. ___,  ___ n.6, 127 S.Ct. 625 (Dec. 5, 2006).




SAFE HAVENS " FEDERAL " MISDEMEANORS " OFFENSES WITH ONE YEAR MAXIMUM Finding and Creating Federal Misdemeanors with One-Year Maximum Sentences
The federal accessory-after-the-fact statute, 18 U.S.C. 3, can be a tool for creating misdemeanors. Any federal offense with a two-year maximum can be reduced to a misdemeanor (with a one-year maximum) by pleading to accessory after the fact to that offense. This is useful where it is important to have a misdemeanor conviction, rather than a felony. E.g., aggravated felony crimes of violence under 18 U.S.C. 16(b); TPS felony disqualification. It is also useful to reduce a two-year maximum to a one-year maximum, to qualify for the Petty Offense Exception to CMT inadmissibility. See LaFarga v. INS, 170 F.3d 1213 (9th Cir. 1999). Counsel can do a database search of the entire United States Code and of the Code of Federal Regulations for phrases like "not more than two years" and "not more than 2 years." Two-year offenses are rare, but it would be nice to add them to the stock of offenses which we can use in negotiating misdemeanor pleas. For valuable lists of federal misdemeanors, see; Thanks to Joe Beeler.