Criminal Defense of Immigrants


§ 11.16 (B)

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(B)  Immigration Consequences.  Under federal law, a misdemeanor is 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.[130]


While this regulation 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.


                If the immigration courts use the state definition of misdemeanor, then a misdemeanor is a criminal offense other than one punishable by a term in state prison or an infraction.  In practice, this means a misdemeanor may carry a maximum of one year or less in custody.[131]  The standard punishment for a misdemeanor in California, unless a different punishment is provided in the statute defining the offense, is six months or less in custody.[132]


                There are several immigration contexts in which it is important to avoid a misdemeanor conviction:  (a) the Legalization Program, (b) the Special Agriculture Workers’ Legalization Program, (c) the Family Unity Program, and (d) Temporary Protected Status.  For example, three misdemeanor convictions, or one felony conviction, will disqualify an immigrant from obtaining Lawful Permanent Resident status through the Legalization Program.[133]  If the applicant has three misdemeanor convictions, and one is reduced to an infraction on a motion to reduce, then the applicant has only two misdemeanor convictions, and would be eligible for this immigration benefit, since the law is clear that it is the final or most recent sentence that governs for immigration purposes.[134]


                Also, certain offenses might be held to involve moral turpitude or to be particularly serious crimes to bar asylum or withholding as a felony conviction but not as a misdemeanor conviction.


[130] See 8 C.F.R. § 245a.1(o), (p), and Comments, published at 53 Fed.Reg. 9,862-4 (Mar. 28, 1988).

[131] California Penal Code § 17(a).

[132] California Penal Code § 19.

[133] INA § 245A(a)(4)(B), 8 U.S.C. § 1255(a)(4)(B).

[134] Griffiths v. INS, 243 F.3d 45 (1st Cir. 2001); Matter of Martin 18 I. & N. Dec. 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).