Reducing a felony to a misdemeanor: can it help immigrants?

This page is about lowering a felony to a misdemeanor. For every way to fix an old case, see Ways to fix an old California conviction. This is general information, not legal advice.

Can reducing a felony help my immigration case?

Sometimes, yes. Here is why.

Immigration law often asks two questions about a conviction:

1. What is the most time a judge could have given you? This is called the potential sentence.
2. What time did the judge actually give you? This is the sentence imposed, and it counts even if the judge suspended it.

A California felony can carry more than a year. A misdemeanor cannot. California law says a misdemeanor carries at most 364 days. So when a felony becomes a misdemeanor, the potential sentence can drop below one year. That can close some doors to deportation and open some doors to relief.

When can it help?

These are the most common situations where one day under a year makes a difference.

• One "moral turpitude" crime soon after you got your green card. A green card holder can be deported for one crime involving moral turpitude (often called a CIMT, meaning a crime seen as dishonest or ill intended) committed within 5 years after admission, but only if the crime could be punished by one year or more. A misdemeanor with a 364 day maximum does not meet that test.
• The "petty offense" exception. When you apply for a green card or return from a trip, one CIMT can be forgiven if the most you could have gotten was one year or less and your sentence was not over 6 months. A felony usually cannot meet that test. A misdemeanor can.
• Some forms of relief in immigration court. Some defenses look at whether a crime could carry a year or more. A reduction can help keep those doors open. Ask a lawyer which ones apply to you.
• DACA. A felony conviction blocks DACA. A misdemeanor may not, unless it is a "significant" one or one of three or more. The DACA rule, 8 CFR 236.22(b)(6), uses the federal definition of conviction and does not say how a reduced felony is treated. Ask your lawyer before you file.

When will it not help?

Be clear eyed about this. A reduction does not help with everything.

Will it help with a drug conviction?

Usually not for deportation. Almost any drug conviction can make a noncitizen deportable, felony or misdemeanor. The only exception in the law is one offense of having 30 grams or less of marijuana for your own use. A reduction may still help with jobs, housing or other immigration questions, so ask. To erase a drug conviction for immigration, you usually need a different tool. See Ways to fix an old California conviction.

What if the judge gave me a year or more?

An "aggravated felony" is the most serious kind of conviction in immigration law. A theft offense or a crime of violence becomes one when the sentence imposed is at least one year, even if the judge suspended all of it. Reducing the crime to a misdemeanor changes the label. It may not change the sentence immigration looks at. Read Why the length of a sentence matters and What is an aggravated felony?

What about domestic violence, guns or two CIMTs?

Those deportation rules do not depend on whether the crime was a felony. A reduction usually will not fix them. See Can a domestic violence charge or restraining order lead to deportation?

What about citizenship?

Citizenship looks at your good moral character, usually over the last 5 years. A reduction does not erase the conviction. You must still report it on the citizenship form, along with any expunged offenses. See Applying for citizenship with an arrest or record.

What are the three ways to reduce a felony?

Penal Code 17(b): a "wobbler" becomes a misdemeanor

Some California crimes are "wobblers." They can be charged as a felony or a misdemeanor. If you got probation for a wobbler felony, you can ask the court to declare it a misdemeanor. The law says it then becomes a misdemeanor for all purposes. You can ask at sentencing or later.

Prop 47 (Penal Code 1170.18): some old felonies become misdemeanors

In 2014, California voters passed Prop 47. It made some drug possession and low level property crimes misdemeanors, such as theft of property worth $950 or less. If you already finished your sentence for one of these felonies, you can apply to the court that sentenced you to have it changed to a misdemeanor. The law says it is then a misdemeanor for all purposes.

Prop 47 does not cover everyone. Penal Code 1170.18(i) leaves out anyone with a prior conviction for one of the very serious "super strike" crimes listed in Penal Code 667(e)(2)(C)(iv), or for a crime that requires sex offender registration under Penal Code 290(c). A lawyer can check your record.

There is no longer a general filing deadline. The current text of 1170.18 (as amended in 2023) has no cutoff date for people who finished their sentence. You can still file now, but do not wait: the process takes time, and an immigration case may move faster.

Penal Code 18.5: the 364 day rule

Since January 1, 2015, a California misdemeanor carries at most 364 days. California says this rule applies to older cases too. If a judge sentenced you to a full year in county jail for a misdemeanor before 2015, you can ask that court to change it to 364 days.

Immigration officials may not see it the same way. In Matter of Velasquez-Rios (2018), the Board of Immigration Appeals held that the 364 day change does not apply back in time to the deportation test for a moral turpitude crime "for which a sentence of one year or longer may be imposed." The Ninth Circuit agreed in 2020. So for a pre 2015 misdemeanor, that test looks at the maximum on the date you were convicted. A change to the sentence you actually received is a separate question, and Thomas and Thompson applies to it. See Why the length of a sentence matters.

Ask your lawyer what the court order should say about the 364 day maximum, so the record is clear for immigration.

Did Prop 36 change Prop 47?

Yes, for new cases. Prop 36 took effect on December 18, 2024. Theft of $950 or less is still generally a misdemeanor. But it can now be charged as a felony if you have two or more past convictions for certain theft crimes. Prosecutors can also add up the value of several thefts into one charge. For drugs, Prop 36 created a new "treatment mandated felony" for possessing hard drugs with two or more past drug convictions. The ILRC warns that this new felony may even count as an aggravated felony.

If you have a new theft or drug case, see What Prop 36 means for immigrants charged with drug or theft crimes and talk to your defense lawyer before you plead.

Can a reduction help keep me away from ICE?

It can help in one way. California limits when local jails may help ICE. In many cases a jail may notify or transfer someone to ICE only if they have certain serious convictions. The California Attorney General says plain misdemeanors do not count for this, and a conviction reduced under Prop 47 cannot be used as a reason. See Can a California jail hold me for ICE?

How is this different from expungement?

An expungement (Penal Code 1203.4) dismisses the case after you finish probation. It is good for jobs. But USCIS says an expunged conviction still counts for immigration.

A reduction is different. It changes the level of the crime. The conviction is still there, but the possible sentence is lower. Some people do both. Some need neither and should use Penal Code 1473.7 instead, which can erase the conviction for immigration if there was a legal mistake in the case. Your lawyer can pick the right order.

What should I do first?

1. Get your record. Ask for your California record and the full court file for the case. See How to get a copy of your criminal record.
2. Write down the exact code section you were convicted under, the date, and the sentence. The exact section matters more than the name of the crime.
3. See an immigration lawyer or a clinic that handles both criminal and immigration cases. Bring the questions below.
4. Let the lawyer file, or file with their help. Ask for the right words in the court order.
5. Get a certified copy of the new court order. Keep it with your immigration papers.

You are not your worst day. Many people in your shoes have gone back to court and changed their story. You can take the first step this week.

Questions people ask

Will filing in criminal court put me on ICE's radar? Any court filing creates a record. Talk to an immigration lawyer before you file, especially if you have no papers or are in immigration court.

I am in immigration court now. Is it too late? No, but move fast. Tell your immigration lawyer and your criminal court lawyer about each other.

Do I need a lawyer to file? For immigration purposes, yes, get advice first. The wording of the court order can decide whether it helps.

Does a reduction help with my DACA renewal? It may. A felony blocks DACA, but the DACA rule does not say how USCIS treats a felony reduced to a misdemeanor. Ask a lawyer before you renew, and send USCIS the new court order with your renewal.

Who can help?

These are free or low cost public offices and nonprofits. Contact them to confirm hours, languages and openings. Being listed here is not a referral or a promise of service.

• Community Legal Services in East Palo Alto (CLSEPA): record clearance for adults and young people, and immigration help, for low income residents of San Mateo and Santa Clara counties. 650-326-6440. clsepa.org/services
• State funded immigration legal help anywhere in California: the California Department of Social Services provider map, or call (916) 651-8017.
• Your old public defender's office: call and ask whether it helps with felony reductions and Prop 47.
• More options: Free or low cost immigration legal help in the Bay Area and How to find an immigration lawyer you can trust.

Is there a checklist I can print?