What a Difference a Day Makes

What a Difference a Day Makes - Or, How New York State Beat Federal Immigration and helped Non-Citizen New Yorkers by Redefining One Year as 364 Days

In 1996, Congress passed The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) which contained a seemingly small change to the definition of “aggravated felony” that would come to have far reaching and often disastrous consequences for non-citizens accused of minor crimes in New York for the next 22 years. This small change simply caused the term “aggravated felony” to include offenses where one year or more was the sentence. A similar change, with similarly devastating impact, affected those convicted of offenses where one year or more was simply possible.

Previous to 1996, and by longstanding tradition, the terms felony and misdemeanor were defined by their possible punishments. Traditionally, and New York was no different, states defined misdemeanor offenses as offenses where the maximum punishment was one year in jail. Felony offenses were offenses where the potential punishment could be more than one year. State misdemeanor offenses were and are considered by the states to be minor criminal offenses, that carry minor (by comparison) penalty. State felony offenses were and are considered by states to be serious criminal offenses that carry serious punishments.

Therefore, in 1996, the Federal Government snuck up on the States and quietly changed the game for non-citizens charged with what the states believed were less serious offenses. Congress did this by quietly backing the definition of “aggravated felony” just one day from where tradition had fixed the difference between felony and misdemeanor. The Federal Government now made offenses for which one year had been imposed, and many offenses for which one year “could” be imposed convictions with dire consequences to immigration status for non-citizens. Suddenly, entire laundry lists of convictions that the states (like New York) believed were less serious, unworthy of massive impact on those convicted, were now creating havoc in Immigration Courts, ripping families apart - consequences that were out of proportion in many cases to the state offenses involved.

New York State Just Beat the Feds at Their Own Game

In a brilliant move, however, after 22 years, New York State had enough. The New York State Legislature has beaten the Feds at their own game. Recent legislation in New York, that has already taken effect (and indeed is retroactive), has redefined one year to mean 364 days for purposes of Criminal Sentencing laws. New York backed its own definition of the maximum penalty for all misdemeanors to be one day less than the “one year or more” standard the Federal Government unleashed on America in 1996.

This single act alone is delicious in itself, but the Legislature did not stop there. The Legislature also made the rule to apply retroactively, so that non-citizens victimized or being victimized by IIRAIRA have some chance to undo what has been done.

As a result of the new legislation, people who in the past had received one year sentences on misdemeanors will have their sentences modified to be 364 days by operation of law. Even sentences to less than one year, are now, under the new law, subject to being set aside for resentence if the original sentence can be shown to be likely to result in collateral consequences.

Non-citizens who are currently facing negative immigration consequences because of past New York misdemeanor convictions now have legal options in New York Criminal Courts to modify sentences or vacate convictions. Non-citizens in this situation need to consult with a criminal lawyer right away to make the appropriate applications in Criminal Court to modify or vacate their convictions.

Further, the law provides a procedure for non-citizens with prior misdemeanor convictions to seek to have their convictions vacated to permit re-pleading and resentencing. Under this new procedure, the law provides a “rebuttable presumption” that the defendant was insufficiently aware of the immigration consequences of the conviction.

Going forward, no misdemeanor conviction in New York will be available for the Federal Government to use in “crime involving moral turpitude” deportation. A lawfully admitted immigrant who commits a crime of moral turpitude within five years of admission is subject to removal (deportation) if the crime is punishable by one year or more prison. Until now, many New York State misdemeanor offenses fell into this category. Now that the maximum prison time for any misdemeanor in New York is 364, zero misdemeanors in New York can fall into this category.

Drop the mic. Legislature out. No further questions.

By Don Murray, Esq.


Don Murray is a founding partner of the New York criminal defense law firm Shalley and Murray. He has been helping non-citizens accused of crimes in New York City Criminal Courts for nearly 30 years. He can help you too. If you have a prior misdemeanor conviction in New York, you need to consult with a criminal lawyer right away to see how the new law regarding misdemeanor convictions might change your immigration situation, for the better. Call or text Don Murray at 718-268-2171 for your free consultation right away.

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