Metropolitan News-Enterprise


Monday, May 13, 2019


Page 1


Ninth Circuit:

Felony Reduced Retroactively to Misdemeanor Is Still a Felony for Deportation Purposes


By a MetNews Staff Writer


A woman is subject to deportation based on commission of a felony notwithstanding that her California marijuana conviction was, after she served her sentence, lowered to a misdemeanor, the Ninth U.S. Circuit Court of Appeals said Friday.

The opinion by Senior Circuit Judge Michael Daly Hawkins denies a petition for review of a decision of the Board of Immigration.

The board had affirmed the decision of an immigration judge who found that although Claudia Prado’s conviction was reduced by the Orange Superior Court from a felony to a misdemeanor under Proposition 64, “the conviction remains a [felony] conviction for [i]mmigration purposes.”

Hawkins’s Decision

Hawkins wrote:

“Prado’s argument fails because federal immigration law does not recognize a state’s policy decision to expunge (or recall or reclassify) a valid state conviction….[A]n individual remains removable based on a conviction that was vacated ‘for equitable, rehabilitation, or immigration hardship reasons.’ “

The jurist said a conviction will be disregarded where it has been reversed based on a flaw in the process, but rejected Prado’s contention that this applies to her.

Flaw Not Shown

“We are not persuaded by Prado s attempt to characterize California’s decision that its marijuana policy was flawed as proof of a ‘substantive’ flaw in her conviction,” Hawkins said, continuing:

“Prado explains that California voters passed Proposition 64 because they believed California’s marijuana laws were unjust, and claims that California’s ‘enforcement of its old laws presents constitutional and legal defects in Ms. Prado’s initial conviction.’ However, Prado merely asserts that California’s pre-Act drug enforcement policies were illegal or unconstitutional, without attempting to show how the proceedings against her were defective in any way. Because Prado does not challenge the validity of her conviction, it retains its immigration consequences.”

Hawkins said that whatever might be the effect of a state expunging a conviction—a question left open by a 2002 Ninth Circuit opinion—the Orange Superior Court “merely reclassified” Prado’s conviction “rather than fully expunging it.”

The case is Prado v. Barr, 17-72914.


Copyright 2019, Metropolitan News Company