For some citizens-to-be, what a difference a day makes

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Federal law vs. California law: for citizens-to-be, what a difference a single day can make

Lawmakers in Sacramento are considering a bill to lop a single day off the maximum state punishment for misdemeanors, and contrary to appearances, it's not an exercise in tinkering or legislative wheel-spinning. It's an important, substantive reform that for thousands of Californians could mean the difference between being able to get their lives back on track or being expelled forever from their neighborhoods, their state and, in fact, their country.

The change is needed because of a federal law that Congress adopted in 1996 calling for removal — deportation — of noncitizens who are convicted of "aggravated felonies." That makes a certain amount of sense when discussed in shorthand. But on closer inspection, it's troubling. Despite the labels, much of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 applies to people who are present in the country legally and in the process of becoming citizens; and "aggravated felonies," as defined, need not be aggravated or even felonies.

The federal law is not intended to apply to relatively minor crimes. But here's the rub: California distinguishes lower-level crimes as those punishable by up to and including a year in prison; the federal law's dividing line is a year or more in prison.

That one-day difference — 364 days vs. 365 — is the problem. It means that a relatively minor crime in California is treated as a serious crime under the federal law. The difference is not the actual sentence or how much time the offender spends in jail. The important number for immigration law purposes is how much theoretical jail time is associated with the crime on the books.

So let's say a lawful permanent resident bounces a check in California, is accused of a misdemeanor and wants to fight it because, he says, it was not a crime but a mistake. He must decide whether to go to trial, shoulder the expenses, miss work and, possibly, lose the case and spend a month or two in jail, or to accept the prosecutor's offer of a small fine and no jail time in exchange for a guilty plea.

Many people opt for the plea, which seems like a reasonable choice until they find their dreams of citizenship crushed and themselves deported because a California misdemeanor is technically punishable by a term one day longer than federal law contemplated, making a misdemeanor here an aggravated felony under the Illegal Immigration Reform Act and subjecting offenders to deportation. Shrinking sentences by one day, as SB 1310 would do, would ensure that citizens-to-be who commit relatively minor crimes suffer only the punishment that they are due, and not the deportation intended for more serious offenders.

Copyright © 2014, Los Angeles Times
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