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Keywords

statutemisdemeanorimmigration law

statuteappealmisdemeanor

Related Cases

Velasquez-Rios, Matter of

Facts

Eduardo Velasquez-Rios, a native of Mexico, and Sanjay Desai, a citizen of India, were both convicted of misdemeanor offenses in California. Velasquez-Rios was convicted of forgery and Desai of grand theft, both of which carried a maximum sentence of one year at the time of their convictions. Following their convictions, the Department of Homeland Security initiated removal proceedings against them, and they applied for cancellation of removal under federal law. However, their applications were denied based on their convictions being classified as offenses under 8 U.S.C. 1227(a)(2).

Eduardo Velasquez-Rios is a native and citizen of Mexico who unlawfully entered the United States at an unknown time and place. On July 22, 2002, he pled guilty to misdemeanor forgery under California Penal Code 475(a) and was sentenced to twelve days in the Orange County Jail, eight days of community service, and a fine. At the time of conviction, Velasquez-Rios was eligible for a maximum sentence of 'not more than one year.'

Issue

Whether California's amendment to Cal. Penal Law 18.5, which retroactively reduced the maximum misdemeanor sentence, could be applied for purposes of determining eligibility for cancellation of removal under 8 U.S.C. 1227(a)(2)(A)(i).

The key question before us is whether Matter of Velasquez-Rios was correctly decided or, as Petitioners contend, California's amendment to 18.5 of the California Penal Code should have been applied to their cases retroactively for purposes of the cancellation of removal statute.

Rule

The court applied the principle that the maximum sentence applicable is determined by the law at the time of conviction, and that retroactive changes to state law do not affect federal immigration law.

The BIA held that even though California's legislature had retroactively reduced the maximum sentence for purposes of state law, nonetheless, for purposes of federal law in 1227(a)(2)(A)(i), the maximum sentence available is determined by looking at the actual date of conviction.

Analysis

The court analyzed the BIA's decision and determined that the maximum sentence for Velasquez-Rios and Desai's convictions was one year at the time of their convictions, which rendered them ineligible for cancellation of removal. The court emphasized that federal law governs the interpretation of federal statutes and that the BIA's reliance on prior decisions was appropriate. The court also noted that allowing retroactive application of state law would create inconsistencies in federal immigration law.

We see no reason why the reasoning underpinning Diaz should apply with any less force here.

Conclusion

The court affirmed the BIA's decision, denying the petitions for review and holding that the retroactive application of California's law could not alter the federal immigration consequences of the petitioners' convictions.

We deny both petitions and affirm the BIA.

Who won?

Wilkinson (the government) prevailed because the court upheld the BIA's decision that the petitioners were ineligible for cancellation of removal based on their convictions.

The BIA also denied his appeal on November 2, 2018.

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