Criminal Defense of Immigrants

(C)  Reduction of Felony to Misdemeanor.  A state court order reducing a felony to a misdemeanor will eliminate immigration consequences triggered by a felony conviction defined under the law of the convicting jurisdiction.[394]  See § § 11.13-11.16, infra.  Under these circumstances, if the sentence imposed was greater than one year in custody, counsel could protect the client against the conviction being considered to be a felony for adjustment purposes by vacating or reducing the sentence to one year or less.[395]

[394] Fernandez-Ruiz v. Gonzales, 468 F.3d 1159 (9th Cir. Nov. 15, 2006) (Arizona court order imposing a twelve-month sentence, for Arizona misdemeanor conviction of “theft by control of property with a value of $250 or more,” in violation of A.R.S. § § 13-1802(A)(1), (C), arguably would not constitute a one-year sentence imposed for removal purposes since the state at the time of sentence designated the conviction a misdemeanor, and under Arizona law the maximum term of imprisonment for a misdemeanor was then six months, see A.R.S. § 13-707, rendering the twelve-month sentence illegal on its face, requiring remand to the BIA to consider the issue in the first instance).

[395] See LaFarga v. INS, 170 F.3d 1213 (9th Cir. 1999) (reduction from felony to misdemeanor reduced maximum to one year, so immigrant qualified for the petty offense exception).  See N. Tooby, California Post-Conviction Relief for Immigrants, Chapter 9 (2002), for more extensive discussion of these immigration benefits.