(B)

Immigration Contexts.  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.[95]  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.[96]

 

            The Legalization Program for Special Agricultural Workers likewise disqualifies an applicant who has suffered three misdemeanor convictions, or one felony conviction.[97]

 

            An applicant is barred from the Family Unity Program, which grants temporary status and work authorization to relatives of legalization recipients while awaiting adjustment of status to Lawful Permanent Resident, by having three misdemeanor convictions or one felony conviction.[98]

 

            Similarly, Temporary Protected Status (TPS) may be granted only to those who do not have two misdemeanor convictions, or one felony conviction.[99]

 

            In addition, under the Immigration Act of 1990 amendments, an offense must now be a misdemeanor to come within the Petty Offense Exception to the moral turpitude ground of inadmissibility.

 

            Also, certain offenses might be held to involve moral turpitude as a felony conviction but not as a misdemeanor conviction.

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

[96] Griffiths v. INS, 243 F.3d 45 (1st Cir. 2001); 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.562 (AG 1956) (commutation by Board of Pardons and Paroles).

[97] This requirement was added in the middle of the SAW program, by legislation effective December 18, 1989.  Immigration Nursing Relief Act of 1989, Pub. L. No. 101-238, 103 Stat. 2099, § 4.  See Interpreter Releases, January 1, 1990, p. 5.

[98] Immigration Act of 1990, § 301.

[99] INA § 244A, 8 U.S.C. § 1254a, added by Immigration Act of 1990, § 302(b)(1). 

SAFE HAVEN -- CONTROLLED SUBSTANCES OFFENSES " SIMPLE POSSESSION OF LESS THAN ONE OUNCE OF MARIJUANA " PRACTICE ADVISORY
Angie Junck of the Immigrant Legal Resource Center, and Sara Edelstein, of the Santa Clara County Public Defenders Office, have published a Practice Advisory on the Immigration Consequences of a Plea to Calif. H&S 11357(b), Now an Infraction. See www.ilrc.org. After Jan. 1, 2011, California Health and Safety Code 11357(b), which prohibits possession of not more than 28.5 grams of marijuana, will be treated as an infraction. They point out that this has several immigration advantages: (1) A first conviction for simple possession will not trigger deportation under the less than one ounce exception to the controlled substances conviction ground of deportation. INA 237(a)(2)(B)(1), 8 U.S.C. 1227(a)(2)(B)(1). (2) It would, however, make a noncitizen inadmissible. This conviction would qualify for a waiver of inadmissibility of the controlled substances conviction/admission ground of inadmissibility. INA 212(a)(2)(A)(i)(II), 8 U.S.C. 1227(a)(2)(A)(i)(II). The waiver is under INA 212(h), 8 U.S.C. 1182(h). It may, however, be quite difficult to obtain a grant of this waiver. (3) Because Health & Safety Code 11357(b) is now an infraction, immigration advocates have an argument that it is not a conviction for immigration purposes, and therefore would not trigger deportation or inadmissibility. See Matter of Eslamizar, 23 I. & N. Dec. 684 (BIA Oct. 19, 2004)(Oregon violation held not a conviction, because of four factors: no possible jail sentence, no right to appointed counsel, no right to jury trial, and no right to proof beyond a reasonable doubt). A California infraction is similar, sharing the first three factors. It is different, however, because a California infraction must be proven beyond a reasonable doubt. It is therefore somewhat unclear whether a California infraction, such as this one, would not be considered a conviction under Eslamizar. Because courts have not yet ruled on this argument, however, criminal defense counsel must conservatively assume that an infraction will make noncitizens inadmissible. (4) Even if it is held to be a conviction for immigration purposes, a California infraction does not constitute a misdemeanor and therefore will not disqualify a noncitizen for Temporary Protected Status, which is not available if the noncitizen has a felony or two misdemeanor convictions. Alternative pleas include simple possession of a controlled substance under other statutes, Health & Safety Code 11350(a) or 11377(a) with the controlled substance unspecified; accessory after the fact, under Penal Code 32; driving under the influence of more than 0.08% alcohol, under Vehicle Code 23152(b); disturbing the peace, under Penal Code 415, or disorderly conduct offenses under Penal Code 647(c),(e), or (h).