A difference of a day makes the immigration laws more consistent.

Wednesday, July 23rd, 2014
By: Jonathan MontagJ.D.

On July 21, 2014, Governor Jerry Brown signed SB 1310 into law which, oddly, has the State of California correct what appears to be a scrivener’s error in the Immigration and Nationality Act.

As harsh as the immigration laws are, there are areas where there is leniency in it. One such leniency is the petty crime exception. This exception makes takes away the harsh result of inadmissibility or deportability for one crime of moral turpitude. While figuring out what moral turpitude crimes is a complicated issue that courts of appeal constantly must confront, some crimes are established moral turpitude crimes. One such crime is theft. Another is domestic violence against a cohabitant. Understanding that people make mistakes, one such crime can is forgiven.

The removal laws are divided in two. There are crimes that lead to inadmissibility – stopping a person from entering the United States or becoming a permanent resident while in the United States, and crimes of deportability – crimes that lead a person in the United States being deported. Curiously, the list of crimes differ. For example, there is no ground of inadmissibility for a conviction for a firearms offense, but there is a ground of deportability for a firearms offense.

The petty crime exception also differs in the inadmissibility context and the deportability context. In the inadmissibility context, the exception, found at INA § 212(a)(2)(A)(ii)(II) states that inadmissibility does not apply to one crime of moral turpitude if:

the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

The petty crime exception for deportability, found at INA § 237(a)(2)(A)(i)(II),  states that deportability for one crime of moral turpitude  committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 245(j) ) after the date of admission, does not apply if the alien is convicted of a crime for which a sentence of one year or longer may be imposed.

Careful reading reveals that a person convicted of a crime where the potential sentence is one year is protected under the inadmissibility exception but not the deportability exception. The deportability exception does not say in “in excess of one year,” but rather “one year or longer.”

There is no rational explanation for the difference, but Congress has never fixed it.

What difference, you may ask, does a day make? A lot. Here’s why. Crimes in California can be divided into two types – minor (pettier) ones are misdemeanors and more serious ones are felonies. Many crimes in California are wobblers – they can be charged as misdemeanors or felonies. Many stand-alone misdemeanors have a maximum sentence of six months, like shoplifting. Some have maximum sentences of one year. When a wobbler is charged as a misdemeanor, the usual maximum sentence is one year.

Should a person be convicted of a misdemeanor with a maximum sentence of one year (and meets the low actual sentence), he will be subject to the inadmissibility petty crime exception as the maximum sentence does not exceed imprisonment for one year. However, the same misdemeanor conviction does not fit the deportability exception because it is a sentence of one year or longer. This difference affects many people with one minor conviction when by all accounts the law was designed to insulate them from deportation for one minor crime.

The one-day difference also affects people seeking Cancellation of Removal for Certain Nonpermanent Residents, INA § 240A(b),  – a form of relief for people in the United States without documentation for ten years or more and can show that their deportation would cause exceptional and extremely unusual hardship to their legal parents, spouse, or children. This relief is not available to people who have convictions for crimes of moral turpitude except if they fit under the petty crime exceptions. While one misdemeanor moral turpitude conviction would fit under the inadmissibility exception, it most often would not fit under the deportability exception. Thus, a person slapped on the wrist for a petty crime is ineligible for relief from deportation even if it would mean exceptional and extremely unusual hardship to a United States citizen family member.

SB 1310 cures this anomaly. It states, “Every offense which is prescribed by any law of the state
to be punishable by imprisonment in a county jail up to or not exceeding one year shall be punishable by imprisonment in a county jail for a period not to exceed 364 days.”

This simple change does not give people appreciably lighter sentences (unless you consider one day of a year appreciable), but does effectuate the petty crime exception as the law probably intended. Congress has made the immigration laws harsher and harsher over the last twenty years. A change for the better is quite unexpected. Not remarkably, it is not the federal government that made the change, but the State of California.  Posted July 23, 2014.


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