If you have been convicted of a felony drug possession or theft in the state of California, and you are not a citizen of the United States, you should absolutely be looking into whether you can, under a 2014 California law called Proposition 47, have your charge and/or sentence reduced. This is true whether you are in the middle of criminal or immigration proceedings or whether it all happened a long time ago.
As explained in detail on Nolo’s California's Proposition 47 page, this new law downgraded many drug possession and theft crimes from felonies to misdemeanors. In addition, another new law (SB 1310) provided that the maximum possible sentence for a misdemeanor is 364 days.
Having your record changed is not automatic. If you have already served time and are off probation or parole, the new law lets you apply to be resentenced as a “misdemeanant.” If you are currently serving time or on probation you can also apply for your conviction to be changed, which may gain you an earlier release from prison.
Nolo offers affordable forms to help you take these important steps without a lawyer. You will need to get moving on this, however. The petition filing deadline is, in most cases, November 4, 2017—and if you wait until the last minute, you may find yourself unable to gather and prepare the necessary documents or obtain legal help.
Why is it so important for a non-citizen to take action to reduce criminal charges? The distinction between a felony and a misdemeanor isn’t important for every type of immigration benefit, but it’s critically important for some. In fact, it may mean the difference between being allowed to enter or stay in the U.S. or not.
Here are the main ways in which having a criminal charge reduced under Prop 47 can help an immigrant or intending immigrant to the U.S. (including one with a green card, a visa, or no current immigration status).
A reduced charge may protect an immigrant from deportation. One of the criminal grounds of deportability under U.S. immigration law is a conviction of a crime involving moral turpitude (CMT) that was punishable by a sentence of at least one year. Prop 47 helps reduce the possible misdemeanor sentence to 364 days, which is less than one year, thereby avoiding this ground of deportability.
A reduced charge may help a non-citizen overcome “inadmissibility” in order to qualify for a U.S. visa or green card. One of the criminal grounds of inadmissibility is conviction of a crime involving moral turpitude for which the maximum penalty was more than one year in prison and the person was, in fact, sentenced to more than six months in prison. Here again, if the maximum penalty turns into a mere 364 days, this ground of inadmissibility may be avoided.
A reduced charge may help a non-citizen qualify for DACA, TPS, or DAPA. Just one felony conviction bars eligibility for Deferred Action for Childhood Arrivals (DACA), Temporary Protected Status (TPS), and the new (but not yet implemented) program that Obama created by Executive Order for parents of U.S. citizens and permanent residents, called Deferred Action for Parental Accountability (DAPA). By reducing the conviction to a misdemeanor, one's eligibility may be restored—though this is a complex area, and “significant misdemeanors” are also a bar to DACA and DAPA eligibility.
A reduced charge may help undocumented persons qualify for cancellation of removal. Undocumented people who have lived in the U.S. for ten years, have been placed in removal proceedings, and who can meet certain eligibility requirements, may the court ask to “cancel” their deportation and grant permanent residence (a green card). However, conviction of a single crime involving moral turpitude bars this remedy if the crime has a potential sentence of one year or more. If, under Prop 47, the charge can be reduced to a single misdemeanor with a potential 364-day sentence, the CMT bar can be avoided.
A reduced charge may help an undocumented person qualify for prosecutorial discretion. U.S. immigration authorities do not have the resources to attempt to deport every undocumented (“illegal”) person in the United States. They instead set certain priorities for enforcement. Someone convicted of a felony falls under the top priority category for enforcement. But if that felony become a misdemeanor under Prop 47, the person might be able to avoid removal proceedings and even qualify for a quasi-status known as prosecutorial discretion.
This is merely an introduction to the benefits and possibilities for immigrants and non-citizens convicted of crimes in the state of California. The program is relatively new, and some details have yet to be worked out—in particular, the degree to which it will help someone who has already been deported, denied a visa or green card, or undergone other negative consequences based on their California felony conviction.
See an immigration attorney with expertise in the overlap with criminal law for a full analysis. It is particularly important to see an immigration attorney if you have a drug crime on your record, because these are treated particularly harshly under U.S. immigration law, whether they were categorized as misdemeanors or felonies.