Criminal Defense of Immigrants

(A)  Types of Immigration Benefits.  There are three major immigration benefits of obtaining a court order reducing a felony to a misdemeanor, or a misdemeanor to an infraction.  These benefits include avoiding immigration damage, or obtaining an immigration benefit, that depends on:

(1)      whether the immigrant has a felony conviction,

(2)      whether the immigrant has a certain number of misdemeanor convictions, or

(3)      whether the maximum custody for an offense is one year or less.

The Ninth Circuit has held that an alternative felony-misdemeanor, which was reduced to a misdemeanor after successful completion of probation, became at that time a misdemeanor with a one-year maximum sentence for purposes of the petty offense exception to inadmissibility under immigration law.[116]  This is also consistent with the rule that it is the final sentence that counts for immigration purposes, rather than the initial sentence.[117]

                One important effect of a motion reducing a felony to a misdemeanor is that it reduces the maximum possible custody sentence to one year.  This can benefit the immigrant in two general ways.  First, it can assist him or her to qualify for the Petty Offense Exception, which has a multitude of possible favorable effects.  See § 20.29, infra.  Second, it can reduce the possible maximum sentence for one conviction of a crime of moral turpitude to less than one year, which will avoid removal on account of that conviction.  See 11.14, infra.

[116] LaFarga v. INS, 170 F.3d 1213, 1215 (9th Cir. 1999); Garcia-Lopez v. Ashcroft, 334 F.3d 840 (9th Cir. June 26, 2003) (immigration court must give consideration to state court reduction of California ‘wobbler’ offense from a felony to a misdemeanor offense. Reductions of sentences by state courts are qualitatively different from state expungements. In modifying a sentence, the state court is determining the nature of the conviction pursuant to state law).

[117] Matter of Martin 18 I. & N. 226 (BIA 1982) (correction of illegal sentence); Matter of H, 9 I. & N. Dec. 380 (BIA 1961) (new trial and sentence); Matter of J, 6 I. & N. Dec. 562 (AG 1956) (commutation by Board of Pardons and Paroles).