§ 11.14 1. Immigration Consequences
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A reduction of a felony to a misdemeanor can be regarded as a post-conviction order modifying sentence. As such, the most recent sentence (i.e., the reduced level of the offense), is binding on the immigration courts. See § 11.10, supra.
POST CON RELIEF " UTAH " REDUCTION OF FELONY TO MISDEMEANOR " IMMIGRATION EFFECT
Utah Code Ann. 76-3-402 (allows for reduction of degree and sentence of a conviction). The OCC there lately has been using the Board's recent case in Matter of Ruiz-Lopez, 25 I&N Dec. 551 (BIA 2011) (maximum possible sentence for an offense, rather than the standard range under the State's sentencing guidelines, determines an alien's eligibility for the petty offense exception). Specifically, they argue that even when a conviction's level is lowered after the plea, that it is the original level's max potential sentence that controls for purposes of POE. Thanks to Aaron Tarin. NOTE: This argument is wrong. The proper rule is that a reduction from felony to misdemeanor is a sentence reduction and the final sentence governs for immigration purposes. See Matter of Cota-Vargas, 23 I&N Dec. 849 (BIA 2005); LaFarga v. I.N.S., 170 F.3d 1213 (9th Cir. 1999)
PRACTICE ADVISORY POST CON RELIEF " MOTION TO REDUCE FELONY TO MISDEMEANOR RELIEF " WAIVERS " NON-LPR CANCELLATION " CMT CONVICTION BAR " BAR DOES NOT REQUIRE THAT THE CONVICTION ACTUALLY TRIGGER INADMISSIBILITY OR DEPORTABILITY
A reduction of a felony to a misdemeanor, in a jurisdiction in which the maximum sentence for a misdemeanor is no greater than one year, may enable a client to qualify for the Petty Offense Exception to CMT inadmissibility if the other requirements for the POE are met. INA 212(a)(2)(A)(ii)(II), 8 U.S.C. 1182(a)(2)(A)(ii)(II). See, e.g., California Penal Code 17(b)(3). If the felony is reduced to a misdemeanor, the maximum punishment for the offense is reduced to one year, which is small enough to qualify for the Petty Offense Exception. LaFarga v. INS, 170 F.3d 1213 (9th Cir. 1999). This conviction, however, may still disqualify the client from eligibility for non-LPR cancellation. This bar for being convicted under INA 212(a) or 237(a)(2) does not require that a noncitizen actually be inadmissible or deportable under one of these statutes. Matter of Cortez, 25 I&N Dec. 301 (BIA 2010); Matter of Gonzalez-Silva, 24 I&N Dec. 218 (BIA 2007). The Ninth Circuit shares this view. Vasquez-Hernandez v. Holder, 90 F.3d 1053 (9th Cir. 2010); Mota v. Mukasey, 543 F.3d 1165 (9th Cir.2008). In deciding whether a person has been convicted of an offense under INA 212(a)(2), 237(a)(2), and 237(a)(3) for purposes of non-LPR cancellation, the BIA will look only to language specifically pertaining to the criminal offense, such as the offense itself and the sentence imposed or potentially imposed. Matter of Cortez, 25 I&N Dec. 301 (BIA 2010). In deciding whether a conviction is described under INA 212(a)(2), 237(a)(2), and 237(a)(3) for eligibility for non-LPR cancellation, the BIA will not consider whether the conviction was within five years of admission or other immigration requirements necessary for deportability. Matter of Cortez, 25 I&N Dec. 301 (BIA 2010). If an offense qualifies for the Petty Offense Exception and is punishable by less than a year, the noncitizen is eligible for cancellation because offense is not described under INA 237(a)(2), the crime of moral turpitude ground of deportability. Matter of Pedroza, 25 I&N Dec. 312 (BIA 2010).