Tooby's California Post-Conviction Relief for Immigrants

Under immigration law, for purposes of adjustment of status, a misdemeanor is a crime punishable by a maximum term of one year or less, with two exceptions:

(2)    A criminal offense punishable by a maximum sentence of five days or less constitutes an infraction; and

(3)    If the state designates a state conviction as a misdemeanor, and the sentence actually imposed is one year or less, the conviction is considered by the DHS to be a misdemeanor conviction even if the state maximum potential sentence is greater than one year.[42]

While this regulation applies specifically to adjustment of status, there appears to be no reason for the immigration courts not to apply this definition wherever the term “misdemeanor” appears in the immigration statutes and regulations.

            In California, the maximum period of confinement for a misdemeanor is one year, by statute,[43] so this regulation does not appear to confer any benefit. 

            In other states, however, in which the maximum punishment for a misdemeanor is greater than one year in custody, this regulation would enable the noncitizen to avoid a conviction being considered to be a felony, for purposes of adjustment of status, if (a) the state designates the conviction as a misdemeanor, and (b) the sentence imposed is one year or less.

            Under these circumstances, if the sentence imposed was greater than one year in custody, counsel could protect the client against the conviction being considered to be a felony for adjustment purposes by vacating or reducing the sentence to one year or less.  Immigration statutes provide that a noncitizen, who has been convicted of a felony, is ineligible for a number of immigration benefits, including the Legalization Program, the Special Agricultural Worker Legalization Program, the Family Unity Program, Asylum, Restriction on Removal (formerly Withholding of Deportation), and Temporary Protected Status.  In these cases, reduction of a felony to a misdemeanor would remove this ground of ineligibility.[44]

[42] See § 8 C.F.R. 245a.1(o), (p), and Comments, published at 53 Fed.Reg. 9,862-4 (March 28, 1988).

[43] Penal Code § 17(a).

[44] See LaFarga v. INS, 170 F.3d 1213 (9th Cir. 1999) (reduction from felony to misdemeanor reduced maximum to one year, so immigrant qualified for the petty offense exception).  See Chapter 9, infra, for more extensive discussion of these immigration benefits.