Articles Posted in Immigration Consequences

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In passing Assembly Bill 813, California has now joined 44 other states nationwide in allowing a person who has suffered a criminal conviction to challenge that conviction, even though he or she is no longer in custody.

The new statutes allows relief based on 1) a claim of actual innocence; and 2) failure to fully understand the consequences of the plea.

Although the statute applies to both citizens and non-citizens, in practice, this statute is expected to allow immigrants to seek relief for past convictions which hold devastating immigration consequences.

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Until recently, the Federal Government and the State of California defined criminal “misdemeanors” differently. While the federal government defined a misdemeanor as a crime punishable by up to 364 days, California defined it as one punishable by up to 365 days. This one-day difference often proved disastrous for immigrants with convictions, however, because the Federal government considers a crime punished by 365 days a felony and felony convictions often subject immigrants to deportation or exclusion.

In 1996 Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act, which expanded the crimes for which legal residents can be deported to include crimes which were punished by 365 days. States which continued to defined misdemeanors as including sentences of 365 days unwittingly caused their immigrant-residents to face not only up to a year in jail, but deportation or exclusion from entry as well. This applied to all immigrants, regardless of whether a sentence was suspended or whether a person spent only a few days in jail.

Effective January 1, 2015, California Senate Bill 1310 changed the maximum misdemeanor sentence to mirror the Federal Government’s 364 days. Senate Bill 1242 then applied this change retroactively, allowing those who were sentenced before 2015 to receive the statute’s intended protection.