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Keywords

misdemeanor

statuteappealmisdemeanor

Related Cases

Velasquez-Rios v. Wilkinson

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. The Department of Homeland Security initiated removal proceedings against both individuals, and they applied for cancellation of removal, which was 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 Penal Code 18.5, which retroactively reduced the maximum misdemeanor sentence, could be applied for purposes of federal law 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 maximum sentence applicable for determining eligibility for cancellation of removal is based on the law at the time of conviction, not on subsequent changes to state 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 applied the rule by examining the historical context of the petitioners' convictions, determining that at the time of their convictions, the maximum sentences were one year. The BIA's reliance on prior decisions, including Diaz and McNeill, was deemed appropriate, as they established that retroactive changes in state law do not affect the federal determination of eligibility for cancellation of removal.

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

Conclusion

The court affirmed the BIA's decision, concluding that the retroactive application of California's law could not alter the petitioners' ineligibility for cancellation of removal based on their prior 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 due to their convictions.

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

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