Why the length of a sentence matters for immigration

This page explains why sentence length matters. It is general information, not legal advice. For the bigger picture, see How a criminal record can affect your immigration status.

Does a 365 day sentence hurt me more than 364 days?

Yes. Many immigration rules turn on one year. A sentence of 365 days is one year. A sentence of 364 days is not.

The biggest example: a theft offense (including receiving stolen property), a burglary or a crime of violence becomes an "aggravated felony" when the sentence is at least one year (8 U.S.C. 1101(a)(43)(F) and (G)). That is true even for a misdemeanor. An aggravated felony brings deportation with almost no way out, and it blocks citizenship forever. See What is an aggravated felony?

So a shoplifting case with a one year sentence can be far more dangerous than a felony with a short sentence. Immigration law does not care about California's labels. It cares about the numbers.

What counts as a "sentence" for immigration?

More than most people think.

• Suspended time counts. If the judge sentences you to one year and suspends it, immigration still counts one year. Federal law says a sentence includes the jail time a court ordered "regardless of any suspension" (8 U.S.C. 1101(a)(48)(B)).
• Time served is not the test. Getting out early for good behavior does not change the sentence the judge gave.
• How the judge words it matters. The federal definition counts any jail or confinement a court orders, even if it is suspended (8 U.S.C. 1101(a)(48)(B)). Jail time ordered as a condition of probation may fall under that. How a California probation order is read is a question for your lawyer. Ask exactly how your sentence will read on paper.

Which rules look at the sentence the judge gave?

Other aggravated felony groups also turn on a one year sentence: forgery, counterfeiting and commercial bribery, and obstruction of justice, perjury or bribing a witness (8 U.S.C. 1101(a)(43)(R) and (S)). In 2023, the Supreme Court held in Pugin v. Garland that a crime can count as obstruction of justice even when no investigation or court case was pending yet, such as dissuading a witness from reporting a crime. Ask about any charge tied to a witness, the police or a court.

Which rules look at the most the judge could have given?

Some rules look at the potential sentence, meaning the most time the law allows for that crime. That is where Penal Code 18.5 matters.

• One "moral turpitude" crime soon after you got your green card. A green card holder can be deported for one crime involving moral turpitude (a CIMT, a crime seen as dishonest or ill intended) committed within 5 years after admission, if the crime could be punished by one year or more.
• The petty offense exception also needs a maximum possible sentence of one year or less.

Since January 1, 2015, every California misdemeanor carries at most 364 days. That one day keeps many newer misdemeanors under these lines. A felony usually carries more, which is why reducing a felony can help.

What about time actually spent in jail?

Citizenship has its own rule. If you were actually held in jail or prison for 180 days or more during the period USCIS reviews (usually the 5 years before you apply), you cannot show good moral character for that period. Here the days you really spent inside count, not the sentence on paper.

For DACA, a misdemeanor with a sentence of more than 90 days in custody counts as a "significant misdemeanor," which blocks DACA.

How can a defense lawyer protect me now?

California law says your defense lawyer must give you accurate advice about immigration effects and try to defend against them, if you want that. Prosecutors must also consider avoiding immigration harm when they make a plea offer.

Ask your lawyer about:

• 364 days or less on any count, instead of 365 days or one year
• Splitting time across counts in a way that keeps each count under one year (your lawyer will know if this is possible)
• A different charge that does not count as theft or a crime of violence
• No suspended year hanging over a count

You do not have to tell the judge your immigration status when you plead. Tell your own lawyer everything.

Can an old sentence be changed?

Sometimes. There are two kinds of fixes.

1. Penal Code 18.5 for old misdemeanors. If a judge gave you a full year in county jail for a misdemeanor before January 1, 2015, you can ask the court that sentenced you to change it to 364 days. Immigration officials may treat this like any other sentence change, under the rules below. Ask a lawyer before you count on it.

2. Other changes to a sentence. Here is the hard part. In 2019, a federal decision called Matter of Thomas and Thompson said immigration officials honor a later change to a sentence only if it fixes a legal defect in the original case. A change made just to avoid immigration harm, or as a kindness, does not count.

There is some good news. A 2024 federal rule, 8 CFR 1003.55 (amended in February 2026), says the 2019 decision does not apply when:

• the request to change the sentence was filed on or before October 25, 2019, whenever the court granted it, or
• you can show you reasonably relied on being able to get such a change when you pleaded guilty, were convicted or were sentenced on or before October 25, 2019.

In those cases, the older, friendlier rules apply. The rule also says officials must honor an order that fixes a genuine mistake, ambiguity or typo in the original order. If your case is old, ask a lawyer whether this helps you.

What if my conviction itself was the problem?

Sometimes the better fix is to erase the conviction for immigration, not just change the sentence. If no one warned you about immigration before your plea, or your lawyer gave you wrong advice, read Cancel an old conviction under Penal Code 1473.7. For every option, see Ways to fix an old California conviction.

What does this look like in real life?

Example (fictional). Luis has a green card. He is charged with petty theft and a felony grand theft count. The first offer is a plea to grand theft with "one year in county jail, suspended, and probation." Because the theft sentence is one year, even suspended, it would be an aggravated felony. His public defender asks for the same plea with a sentence of 364 days instead, with nothing suspended above that. The new deal keeps the sentence under one year. Luis still asks an immigration lawyer about the other effects of a theft conviction, because the one year line is only one of the rules.

What should I do first?

1. Find your sentence on paper. Get the court minute order or abstract of judgment for each case. See How to get a copy of your criminal record.
2. Write down the exact code section, the date, the jail time ordered, any suspended time, and the days you actually spent in custody.
3. Talk with an immigration lawyer before you file anything or take a plea.
4. Keep certified copies of any new court order with your immigration papers.

This can feel like a lot. Start with one paper. Each step makes the next one easier.

Questions people ask

I got 365 days but only served 3 months. Does that help? Not for the one year rules. Immigration looks at the sentence the judge gave. It can help with the citizenship rule about 180 days in custody.

My sentence was "time served." What does that mean for immigration? It usually means the days you already spent in jail. Bring the court papers to your lawyer so they can see the exact number.

Does probation count as a sentence? Probation alone is not jail time. But suspended jail counts under the federal definition, and jail ordered with probation may count. Read your papers with a lawyer.

Can I ask the judge to change my sentence just because of immigration? You can ask, but immigration officials may not honor it unless it fixes a legal defect. Get advice first.

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 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 public defender: if you have an open case and cannot afford a lawyer, the court appoints one at no cost. Ask them to check immigration effects.
• More options: Free or low cost immigration legal help in the Bay Area.

Is there a checklist I can print?