Matter of Eduardo VELASQUEZ-RIOS (BIA 2018)

Decided October 4, 2018

This case deals with the amendment to section 18.5 of the California Penal Code, which retroactively lowered the maximum possible sentence that could have been imposed for an immigrant’s State offense from 365 days to 364 days.  The California legislature passed this amendment for the obvious reason to protect immigrants from removal.  The amendment was also explicitly retroactive.  However, in this case the BIA held that the amendment did not affect the applicability of section section 237(a)(2)(A)(i)(II) of the Immigration and Nationality Act (crime involving moral turpitude within 5 years of admission for which a sentence of 1 year or more may be imposed).  Therefore, the immigrant in this case could not take advantage of the amendment to avoid removal.  According to the BIA:

Although we recognize that section 18.5 may have retroactively modified the maximum possible sentence for the respondent’s forgery offense for purposes of State law, it does not affect the immigration consequences of his conviction under section 237(a)(2)(A)(i)(II) of the Act, a Federal law. By its plain terms, that provision is concerned with whether an alien has been convicted of a crime involving moral turpitude for which a sentence of 1 year or longer “may be imposed.” (Emphasis added.) In other words, it calls for a backward-looking inquiry into the maximum possible sentence the alien could have received for his offense at the time of his conviction.

This holding is a bit illogical in my option as it completely ignores the fact that the California legislature enacted the law retroactively.