Tooby's California Post-Conviction Relief for Immigrants

(A)

Felony Conviction.  There are a number of immigration contexts in which the availability of a benefit depends on whether the immigrant has a felony conviction.  For example, one felony conviction will disqualify the immigrant from obtaining the benefits of the Family Unity Program, the Legalization Program, the Special Agricultural Workers Legalization Program, and Temporary Protected Status.  Reduction of a felony to a misdemeanor may also help an immigrant qualify for political asylum and withholding of deportation, also known as “restriction on removal.”  See generally § 9.7, infra. 

In other important contexts, an immigration disaster can be triggered by a “felony” conviction that would be avoided if the conviction were instead considered a misdemeanor.  For example, a “crime of violence” that does not have as an essential element the use or threat of force can constitute an aggravated felony only if it is a felony conviction.[14]

            If a felony conviction can be reduced to a misdemeanor, it would no longer trigger the adverse immigration effects of a felony conviction, because it is the most recent sentence that controls for immigration purposes.  See § 9.3, supra. 

[14] 18 U.S.C. § 16(b).