Criminal Court reduces conviction; Immigration court dismisses proceedings

ON December 17, 2013, the Hon. Mark C. Kim, Presiding Judge of Department 20 of the Long Beach Superior Court, ordered that the felony conviction of a Filipino client of the Author under Penal Code Section 475 for forgery on July 28, 1998, be reduced to a misdemeanor, under Penal Code Section 17(b)(3).

The Author filed Notice of Motion and Motion To Reduce Felony Conviction To Misdemeanor on November 26, 2013, and set the hearing on December 17, 2013, in Department 19 of the Long Beach Superior Court that originally sentenced the defendant client.

Indeed, the Filipino defendant pled no contest to the Count 2 of the Felony Complaint on July 28, 1998, and was sentenced to: suspension of imposition of sentence; formal probation for three (3) years; serve 39 days in Los Angeles County Jail, less credit for 39 days, or time served; plus fine; and terms and conditions of probation.

The defendant was represented by a Deputy Public Defender at the time of sentencing on July 28, 1998.

He had long fully complied with all the terms of his probation; and the three-year probation had been completed. He had paid all the fines and had not violated his probation.

Felony forgery reduced to misdemeanor

Forgery under Penal Code Section 475 is a “wobbler”, that is, it is punishable by imprisonment in county jail for not more than 1 year (a misdemeanor), or by imprisonment in state prison pursuant to subdivision h of Section 1170 (a felony).

As a matter of prosecutorial discretion, the Los Angeles County District Attorney filed a complaint for felony. The Defendant was caught with blank checks and a California driver’s license in his name, wherein he printed his faded name therein.

Under Penal Code Section 17, a felony conviction may be reduced by the court to a misdemeanor, when the court grants probation without imposition of sentence, under paragraph 17(b)(3).

Thus, the Hon. Mark C. Kim of Department 20 ( the Hon. Tomson T. Ong of Department 19 was dark on December 17, 2013), granted the motion to reduce felony conviction to misdemeanor.

Dismissal of removal proceedings

At the master calendar hearing on November 15, 2013, the Author denied the allegation in the Notice To Appear that the Filipino respondent, in removal proceedings before the Hon. Anna Ho of Courtroom B of the Los Angeles Immigration Court, was an “arriving alien”.

In Respondent’s Pre-Hearing Brief On Arriving Alien filed on November 19, 2013, this Author argued that the respondent, a lawful permanent resident since December 30, 1989, was not “an arriving alien” when be returned to the United States from the Philippines on March 2, 2013 at the LAX.

Indeed, even after respondent’s conviction on July 28, 1998, by “no contest” plea, he was admitted as a returning lawful permanent resident without being paroled on June 6, 2006, and August 20, 2009. Only at his entry on March 2, 2013, was he paroled.

So, the Government’s affirmative misconduct and laches (delay) warrant equitable estoppel in asserting that respondent was “an arriving alien” on March 2, 2013. See Delgado-Diaz v. Ashcroft, 395 F. 3d 1158, 1165-68 (9th Cir. 2005)

Moreover, the new INA Section 101(a)(13), in distinguishing between lawful permanent residents who briefly leave the United States and those who remain here violates equal protection  because it clearly affects substantial rights.

Indeed, respondent’s departure for the Philippines on February 3, 2013 and his return to the United States on March 2, 2013, a total of 26 days, constituted “innocent casual and brief” absence to visit relatives.

Lastly, the reduction of respondent’s felony to misdemeanor falls under the “petty offense” exception, under INA Section 212(a)(2)(A)(ii)(II), as a defense to removal or inadmissibility for conviction of a crime involving moral turpitude.

On or about December 4, 2013, Heidi Lothian, ICE Assistant Chief Counsel of the Department of Homeland Security, filed Motion To Dismiss Without Prejudice. And by Order of the Immigration Judge dated December 27, 2013, the Hon. Anna Ho granted the Government’s Motion To Dismiss Without Prejudice.

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The Author, Roman P. Mosqueda, has practiced immigration law for more than 20 years, and is a long-standing member of AILA.  Send e-mail to [email protected] or call  (213) 252-9481 for a free initial and confidential consultation, or visit his website at www.mosquedalaw.com or www.EzineArticles.com to read his other articles.