27 I. & N. Dec. 470
BIA2018Background
- Respondent Eduardo Velasquez-Rios, a Mexican national, was convicted in California in 2003 of possession of a forged instrument (Cal. Penal Code §475(a)) and sentenced to 12 days’ jail.
- Immigration Judge found the offense a crime involving moral turpitude for which a sentence of one year or longer may be imposed, because the maximum at conviction was 365 days, and denied cancellation of removal under INA §240A(b)(1)(C).
- After appeal, California amended Penal Code §18.5 (effective Jan. 1, 2015) to reduce misdemeanor maximum from 365 to 364 days; later amended again (effective Jan. 1, 2017) to make that reduction retroactive to prior convictions.
- The Ninth Circuit remanded to the BIA to consider the retroactive §18.5 amendment’s effect on cancellation eligibility.
- The sole legal question: whether a retroactive reduction in the state maximum sentence alters federal immigration law’s backward-looking inquiry into whether the crime “is one for which a sentence of one year or longer may be imposed” at the time of conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §18.5’s retroactive reduction of CA misdemeanor maximum from 365 to 364 days removes respondent’s conviction from INA §237(a)(2)(A)(i)(II) coverage | Velasquez-Rios: retroactive state reclassification means max <1 year, so not disqualifying | Government: federal law looks to maximum punishable at time of conviction; state retroactive change does not alter federal consequence | BIA: Held federal inquiry is backward-looking to law at time of conviction; §18.5’s retroactive reduction does not affect INA §237(a)(2)(A)(i)(II) applicability; appeal dismissed |
Key Cases Cited
- Jordan v. De George, 341 U.S. 223 (1951) (fraud offenses constitute crimes involving moral turpitude)
- McNeill v. United States, 563 U.S. 816 (2011) (statutory inquiry requires consulting state law as it existed at time of the prior conviction)
- United States v. Diaz, 838 F.3d 968 (9th Cir. 2016) (state reclassification made retroactive does not change historical fact of prior felony for federal sentencing)
- Ceron v. Holder, 747 F.3d 773 (9th Cir. 2014) (maximum sentence at time of conviction determinable from the sentencing scheme even for wobbler offenses)