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364-day maximum sentence will reduce immigration consequences of California misdemeanors

A new California law reducing the maximum sentence for misdemeanors from 365 to 364 days will be very important for many foreign nationals facing criminal charges.  The law, SB 1310, takes effect January, 2015.  (Certain California misdemeanors which already carry a maximum sentence of 6 months will be unchanged.)  While a one day reduction may not sound like much, it is very important for immigration purposes.

Limiting the maximum sentence to 364 days of course means that no California misdemeanor can result in one year sentence. A one year sentence, or even the possibility of a one year sentence, can have a drastic impact on the immigration consequences of a criminal conviction.

Reducing consequences of some crimes involving moral turpitude.

A single "crime involving moral turpitude" is a deportable offense if it is committed within five years of entry and "punishable by a year or more." Not only is this ground of deportability important by itself, but it renders people ineligible for a very important deportation defense called cancellation of removal for certain nonpermanent residents.

Defining a "crime involving moral turpitude" is a complicated matter beyond the scope of this post, though there is some explanation here in an earlier blog entry. Notably, however, whether an crime involves moral turpitude does not depend on the sentence, but rather the nature of the offense. Of special concern is that theft offenses are crimes involving moral turpitude- therefore even a minor shoplifting conviction can have huge immigration consequences.

Again, this ground of deportability is based on whether an offense is "punishable by a year or more", and not the actual length of any sentence. Under the current law, many misdemeanors are punishable by up to one year. Because of this one-day overlap in definitions to include sentences of exactly one year, many California misdemeanors are deportable offenses under the older version of the law, even if they are relatively minor and result in little or no jail time.

With the new law, however, California misdemeanors will not be punishable by a full year, and therefore this ground of deportability will no longer apply for misdemeanors. It is important to keep in mind, however, that there are many other grounds of deportability, including one for multiple crimes involving moral turpitude, regardless of the length of potential sentence.

Fewer aggravated felonies.

Another impact of the new law is that it reduces the risk a California misdemeanor will be an "aggravated felony" under immigration law. Aggravated felonies carry especially serious immigration consequences. Not only are aggravated felonies deportable offenses, but they eliminate nearly any possible defense to deportation.

Under immigration law, there is no single definition of an "aggravated felony", rather it is any of several offenses listed in the Immigration and Nationality Act. Despite the name, an "aggravated felony" does not have to even be a felony- a misdemeanor which meets one of the descriptions for qualifying offenses is still an aggravated felony.

Vitally, many aggravated felonies require a "term of imprisonment" of a year or more. For example, a crime of violence or a theft offense for which the term of imprisonment is a year or more will be an aggravated felony. For immigration, the "term of imprisonment" is the length of the sentence, even if it is suspended. Again, the prior version of California law overlaps with the immigration by one day- both misdemeanors and aggravated felonies can include a sentence of exactly one year. Therefore, a California misdemeanor theft or simple assault conviction resulting in a 365 day suspended sentence is an "aggravated felony".

Eliminating 365 day sentences for misdemeanors will therefore prevent many of those convictions from becoming aggravated felonies. As with the discussion about crimes involving moral turpitude, this too comes with a caveat. There are many aggravated felonies which do not depend on the length of sentence at all. Therefore, some California misdemeanors may still be aggravated felonies after the new law.

Similarly, there are many grounds of deportability beyond those discussed above. Therefore, while the reduction of misdemeanor sentences to 364 days will help foreign nationals facing criminal charges, even seemingly minor criminal convictions can still carry serious immigration consequences, including deportation. Also, the new law does not take effect until January 1, 2015. Therefore it is important foreign nationals consult with experienced criminal and immigration counsel before accepting any plea.

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