Crimes of Moral Turpitude


§ 10.24 III. Reduction of Felony to Misdemeanor

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Under certain circumstances, the sentencing court has jurisdiction to grant a motion to reduce a felony to a misdemeanor.  These motions may freely be granted at the discretion of the court, and they can therefore constitute powerful tools to reduce or eliminate certain adverse immigration consequences of criminal convictions and sentences.


A conviction that can be either a felony or a misdemeanor under state law remains a felony, if the original plea was to a felony, until it has been reduced to a misdemeanor by the court in which the conviction occurred.[264]


            This type of post-conviction relief has two chief effects on the sentence that alter the immigration consequences of the conviction:


            (1)  It reduces a felony to a misdemeanor for immigration purposes; and


            (2)  It reduces the maximum possible sentence from the felony maximum to the misdemeanor maximum for immigration purposes.  This can also reduce the sentence imposed to the length of the maximum possible sentence for the conviction as a misdemeanor.[265] 


            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.[266]  This is also consistent with the rule that it is the final sentence that counts for immigration purposes, rather than the initial sentence.[267]


            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 § 4.5, 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 5.8, infra.


            If a felony is reduced to a misdemeanor, so the person has no felony conviction, there is no disqualification from eligibility for certain immigration benefits.  This includes The Legalization Program, the “Special Agricultural Worker” (SAW) Legalization Program, the Family Unity Program, Temporary Protected Status, Political Asylum, and Restriction on Removal, Formerly Withholding of Deportation.  See Chapter 3, supra.

[264] United States v. Gomez-Hernandez, 300 F.3d 974 (8th Cir. Aug. 28, 2002); United States v. Robinson, 967 F.2d 287, 293 (9th Cir. 1992) (where a defendant is convicted of an alternative “felony-misdemeanor” or “wobbler,” the alternative sentence ultimately executed is the one to be used in federal sentencing guidelines calculations).

[265] E.g., United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. June 6, 2002) (en banc) (California felony conviction of petty theft with a prior conviction, under California Penal Code § § 484(a), 666, was not an aggravated felony theft offense because the two-year sentence was imposed as a result of a recidivist sentence enhancement, and the maximum for the petty theft offense itself was only six months, so the maximum possible sentence imposed was only six months).

[266] 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).

[267] 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).