What a difference a day makes.

Saturday, April 23rd, 2011
By: Jonathan MontagJ.D.

Creating a minor buzz is a recent development in the State of Washington. On April 15, 2011, the governor of Washington, Christine Gregoire, signed a bill which reduces the maximum sentence for a gross misdemeanor to 364 days.  The punditry has commented that this is an important law for aliens because it stops many crimes from being classified as aggravated felonies. This is an important effect of the law, but not the most important one. More important is that it prevents many newly-hatched permanent residents from being deportable for one minor offense. It also highlights what appears to be a scrivener’s error in the Immigration and Nationality Act which the Washington State legislature fixed because the U.S. Congress never has.

The idea behind the fact that this statute prevents many aliens from being considered aggravated felons is that some crimes, such as crimes of violence (INA § 101(a)(43)(F)), theft offenses (INA § 101(a)(43)(G), offenses related to commercial bribery, counterfeiting, forgery, or trafficking in vehicle identification numbers (INA § 101(a)(43)(R)), and obstruction of justice, perjury, or bribery of a witness (INA § 101(a)(43)(S)) become aggravated felonies if a person is sentenced to 365 days or more for the offense. Being an aggravated felon renders a non-citizen deportable and bars permanent residents from the most common form of relief available to them, Cancellation of Removal for Certain Permanent Residents. Aggravated felons also cannot ever come back if they are deported (INA § 212(a)(9)(A)) and face stiffer punishments than other deportees if they come back without permission (INA § 276(b)(2)). By making it impossible to receive a 365 day sentence for gross misdemeanors, these crimes can never on their own render one an aggravated felon based on the sentence alone – there is nothing to say that some gross misdemeanors could be considered aggravated felonies for other reasons. Before this law took affect, lawyers in Washington had to makes sure their clients did not get the maximum sentence, 365 days, but rather a maximum of 364 days. As this was not uncommon, clients properly represented could avoid the bleak consequence of being considered an aggravated felon by seeking a 364 day or less sentence.

More important is another consequence of receiving a sentence with a maximum sentence of 365 days. People seeking admission to the United States or adjustment of status in the United States face many grounds of inadmissibility which prevent their admission or adjustment of status. One such ground is having committed or admitting to having committed a crime of moral turpitude. INA § 212(a)(2)(A)(i)(I). Similarly, persons admitted into the United States similarly can be deported for many types of crimes, including a conviction for a crime of moral turpitude. INA § 237(a)(2)(A)(i). (Note that the grounds of inadmissibility are found at INA § 212 and grounds of deportability at INA § 237).

The Immigration and Nationality Act, in its infinite humanity, allows for exceptions to this bar for those convicted of crimes of moral turpitude for one such crime – often referred to as petty crime exceptions. An exception for grounds of inadmissibility is found at INA § 212(a)(2)(A)(ii)(II) and allows an alien seeking admission or adjustment of status to commit one crime of moral turpitude if the maximum potential sentence does not exceed one year and the actual sentence was not in excess of six months. Thus, for example, if an alien is convicted of misdemeanor burglary, Cal. Penal Code § 459, one time (note that in California the maximum sentence for misdemeanor burglary is one year, i.e., 365 days) and got sentenced to 180 days in jail, the alien would not be considered inadmissible – as long as there are no other crimes of moral turpitude under his or her belt.

Now consider how the petty crime exception applies for deportable aliens. The exception is found at INA § 237(a)(2)(A)(i)(I) and allows an alien to escape deportation for one crime of moral turpitude if the alien has been in the United States for more than five years after an admission before his or her conviction. If an alien has been in the United States for five years after an admission, he or she is not deportable for one crime of moral turpitude. If the alien has not been here for five years after an admission, he or she is only deportable for the crime if the maximum sentence for the crime is not a year or more. This seems to be parallel to the petty crime exception for inadmissibility, but it is not. Take the same example of a person convicted of misdemeanor burglary and sentenced to 180 days in jail, and assume that the conviction occurred before the person has been in the United States for five years after an admission. Because the alien has not been in the United States for five years after his or her admission, the person is potentially deportable. Because the misdemeanor burglary carries a maximum sentence of one year – remember the exception applies only if the maximum sentence is not a year or longer and a year sentence for burglary is a year or longer – the alien is deportable. The difference between the inadmissibility exception’s maximum sentence “did not exceed one year” and the deportability exceptions’s maximum sentence is not “a year or longer” means that large numbers of aliens who are not inadmissible are deportable. Inasmuch as in many jurisdictions, many misdemeanors have a maximum sentence of one year, in many jurisdictions aliens can find themselves deportable but not inadmissible. The anomalousness of this outcome is highlighted by the fact that one remedy a person has who commits a crime of moral turpitude within five years of admission and whose misdemeanor crime has a maximum sentence of one year is to adjusting status, as he is then subject to the grounds of inadmissibility. For purposes of inadmissibility, one crime of moral turpitude with a one-year maximum sentence is not a ground of inadmissibility at all and nothing presents an ineligibility to adjustment of status.

It is hard to imagine why this bizarre outcome is the result of anything but an error when the law was drafted. If Congress wanted to give a break to new arrivals to the United States with one minor offense, why limit it to aliens whose misdemeanors have a maximum sentence of less than a year when a great many misdemeanors have maximum sentences of a year?

In the State of Washington the specter of being deportable but not inadmissible has gone away for gross misdemeanors. This means that many newly arrived aliens, permanent residents in particular, have less concern about being deported for one moral turpitude crime within five years of admission as the maximum sentence for many of these crimes is now not one year or longer, but rather 364 days. Washington State fixed a mistake in the Immigration and Nationality Act. The other Washington ought to fix the Act so this irrational distinction between deportability and inadmissibility is eliminated. Posted April 23, 2011.



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