While the three branches of federal government fire off salvos on immigration reform, states are finding ways to tackle challenges to the federal criminal immigration landscape.
Earlier this year, California Governor Jerry Brown signed into law SB 1310, a bill that reduces the maximum possible sentence for a misdemeanor in California from 365 days to 364 days. Although a seemingly inconsequential change for United States citizens, this single day has the potential to impact to lives of many noncitizens convicted of misdemeanor offenses.
The term “aggravated felony” refers to a subset of federal immigration offenses that will result in deportation. To qualify as an aggravated felony, a state crime need not be “aggravated” or a “felony” because federal law does not take into account state law distinctions between felony and misdemeanor crimes. Aggravated felonies carry the harshest immigration consequences, including removal from the U.S. without a hearing and outright bars to relief from removal if a hearing is held. When Congress initially created the term, it included only murder, federal drug trafficking, and illicit trafficking of certain firearms and destructive devices. However, over time Congress has expanded its reach and today it includes even minor crimes that carry a sentence of 365 days or more. As a result of this expansion, state law misdemeanors with a sentence of 365 days or more may be an aggravated felony under federal immigration law.
Therein lays the difference a day can make. By reducing the possible maximum sentence to 364 days, noncitizens with minor criminal convictions are no longer subject to the aggravated felony provision and have the opportunity to seek relief from removal or a dismissal of charges altogether. California is not the first state to make this small but incredibly impactful change. In 2013, Nevada reduced its maximum sentence for a gross misdemeanor to 364 days, and in 2011 Washington State did the same.
In addition to changing legislation, states are also creating pilot programs to provide representation to individuals in removal proceedings. In 2013, New York announced the creation of The New York Immigrant Family Unity Project, which will create a position in the New York Public Defender’s Office for an attorney who will only represent noncitizens in immigration court. In October 2014, Santa Clara County in California restored funding for a similar program.
With President Obama's announcement of prioritizing "felons, not families" for deportation, 364 day sentence limits could become ever more important.