988 F.3d 1081
9th Cir.2020Background
- California reduced the maximum jail sentence for misdemeanors from one year to 364 days (Cal. Penal Code § 18.5), initially effective 2015 and later amended in 2017 to apply retroactively to prior convictions.
- Eduardo Velasquez-Rios and Sanjay Desai were convicted of California misdemeanors when the maximum possible sentence was one year. Both faced removal and applied for cancellation of removal under 8 U.S.C. § 1229b(b).
- Immigration judges concluded their convictions qualified under 8 U.S.C. § 1227(a)(2)(A)(i) because a sentence of one year or longer could have been imposed at the time of conviction, making them ineligible for cancellation of removal.
- The BIA in Matter of Velasquez-Rios held that the relevant federal inquiry looks to the law and sentencing exposure at the time of conviction, not subsequent state changes, and denied relief.
- The Ninth Circuit consolidated the appeals and affirmed the BIA, relying on precedents requiring a backward-looking inquiry (to promote federal uniformity) and rejecting attempts to give the state statute retroactive effect for federal immigration consequences.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether California's retroactive reduction in misdemeanor maximum sentence applies for purposes of § 1227(a)(2)(A)(i) | Petitioners: Yes; the 2017 retroactive amendment reduces maximum sentence to 364 days so convictions no longer trigger § 1227(a)(2)(A)(i) | BIA/Government: No; federal immigration law asks what sentence was available at time of conviction, so one year still controls | No retroactive effect for federal immigration purposes; BIA affirmed |
| Whether Diaz and McNeill are inapplicable because of differences in statutory language | Petitioners: Those sentencing precedents are distinguishable (finality language, present tense) | BIA/Government: McNeill and Diaz govern backward-looking inquiries regardless of textual differences; national uniformity requires looking to law at conviction | Diaz and McNeill reasoning applies; backward-looking inquiry controls |
| Whether state court nunc pro tunc modifications or Full Faith and Credit require recognition of the reduced sentence | Petitioners: BIA precedent (Cota-Vargas, Song) and Full Faith and Credit support recognition of state post-conviction changes | BIA/Government: No nunc pro tunc modification here; those precedents do not compel recognition and have been superseded or limited | Full Faith and Credit and those BIA decisions do not mandate applying § 18.5 retroactively for federal purposes |
| Whether applying the state statute would raise preemption/federalism issues or permit states to alter federal removal standards | Petitioners: California may reduce penalties and that should affect collateral federal consequences | BIA/Government: Federal law defines removability and cancellation eligibility; allowing state retroactive changes would undermine uniform federal immigration policy | Federal immigration standards control; states cannot retroactively alter federal removability consequences |
Key Cases Cited
- McNeill v. United States, 563 U.S. 816 (2011) (federal sentencing inquiry is backward-looking and looks to law at time of conviction)
- United States v. Diaz, 838 F.3d 968 (9th Cir. 2016) (applies McNeill to hold state-law reclassification does not alter prior-conviction trigger for federal enhancement)
- Prado v. Barr, 949 F.3d 438 (9th Cir. 2020) (federal immigration law does not recognize state expungements or reclassifications that alter federal consequences)
- Garcia-Lopez v. Ashcroft, 334 F.3d 840 (9th Cir. 2003) (distinguished; addressed wobbler statute where classification could be felony or misdemeanor at the time of sentencing)
- Arizona v. United States, 567 U.S. 387 (2012) (federal government has broad, exclusive authority over immigration matters)
- Chicago, B. & Q. Ry. Co. v. Illinois, 200 U.S. 561 (1906) (states retain broad police powers absent conflict with federal Constitution)