(B)

Felony/Misdemeanor Distinction.  The state’s designation of whether an offense is a felony or a misdemeanor is binding upon the immigration authorities for purposes of determining the maximum possible sentence for the offense.[86]  However, not all states draw the line between felony and misdemeanor in the same manner.  Therefore whether a conviction should be treated as a felony for immigration purposes, may depend upon federal law.[87] 

[86] Garcia-Lopez v. Ashcroft, 334 F.3d 840 (9th Cir. June 26, 2003) (California state criminal judge decides whether to punish alternate felony/misdemeanor [wobbler] offenses as a felony or misdemeanor).

[87] See N. Tooby & J. Rollin, Criminal Defense of Immigrants § § 10.86-10.93 (4th Ed. 2007).

Ninth Circuit

CRIMES OF MORAL TURPITUDE " DEPORTATION GROUND " SENTENCE
Mendez-Mendez v. Mukasey, 525 F.3d 828 (9th Cir. 2008) (the plain language of the phrase, maximum penalty possible in INA 212(a)(2)(A)(ii)(II), 8 U.S.C. 1182(a)(2)(A)(ii)(II), refers to the statutory maximum, not the guideline range, so noncitizen was ineligible for the petty offense exception to inadmissibility for one CMT conviction, under INA 212(a)(2)(A)(ii)(II), 8 U.S.C. (a)(2)(A)(ii)(II)). Note: This result is different under state sentencing statutes that prohibit a sentence in excess of one year for a given offense, criminal history, or other circumstances. United States v. Simmons, __ F.3d __ (4th Cir. Aug. 17, 2011), overfuling United States v. Tlarp, 406 F.3d 242 (4th Cir. 2005).