On Oct. 4, 2018, the Board of Immigration Appeals issued the precedential decision Matter of Velasquez-Rios, 27 I&N Dec. 470 (BIA 2018), that negated part of a California law intended to help noncitizens avoid some of the overly harsh consequences of prior misdemeanor convictions.

California Penal Code § 18.5, which went into effect on Jan. 1, 2015, changed the maximum possible sentence for a misdemeanor in that state from 365 days in jail to 364 days. On Jan. 1, 2017, the law was amended to apply retroactively, so that even individuals whose convictions were final prior to Jan. 1, 2015, would be considered under state law to have been facing a maximum possible sentence of only 364 days in jail. Additionally, under § 18.5(b), individuals actually sentenced to 365 days in jail could petition to have their sentences retroactively reduced to 364 days.

The law was written, in part, to minimize the impact of INA § 237(a)(2)(A)(i), which provides that a noncitizen is deportable if they have been convicted of a single crime involving moral turpitude (CIMT) within five years of their admission to the United States for which a sentence of one year or longer may be imposed. In addition to deportability, this section of the INA triggers other consequences such as mandatory detention and, as in the case of Velasquez-Rios, ineligibility for cancellation of removal for non-lawful permanent residents, who cannot have been convicted of an offense described in INA § 237(a)(2).

In Velasquez-Rios, the Board held that although § 18.5 retroactively changed the maximum possible sentence for state law purposes, it does not affect the immigration consequences under § 237(a)(2)(A)(i). The Board reasoned that, since the language of the INA refers to whether a sentence of one year of longer “may be imposed,” it must look back to whether at the time of the conviction the individual could have been sentenced to 365 days in jail. This reasoning ignores the plain language of § 18.5, which specifically states that the maximum sentence of 364 days applies retroactively to convictions prior to Jan. 1, 2015. However, for Velasquez-Rios, the Board concluded that his misdemeanor California forgery conviction was an offense under § 237(a)(2)(A)(i), making him ineligible for cancellation of removal.

What does this mean for noncitizens with misdemeanor California CIMTs that were final prior to Jan. 1, 2015? The Board’s decision is likely going to be appealed to the Ninth Circuit. So, individuals already in removal proceedings should continue to argue that the law is retroactive for immigration purposes. However, individuals not in removal proceedings cannot currently rely on the retroactivity of the law. When assessing deportability under § 237(a)(2)(A)(i), such as for a naturalization application, these individuals should assume that the maximum possible sentence for their conviction was 365 days in jail.