When a person has made a big mistake, they may be relieved to hear that the conduct they engaged in is not being considered for felony charges. Imagine a 19-year-old accused of shoplifting an iPhone — she might be presented a possible plea of misdemeanor larceny and the chance to put it behind her if she accepts a $2,000 fine and serves one day in jail.
For noncitizens, however, such mistakes cannot be put in the rearview mirror so easily. For these residents, some of Michigan’s one-year misdemeanors can carry a life sentence of deportation.
Attorneys and members of the public alike are often surprised to learn that a green card holder who is a parent and breadwinner could be deported if they commit a misdemeanor. This is because under federal law, a single conviction for certain crimes can make a noncitizen deportable if the offense carries a possible sentence of one year or more.1 Michigan has several one-year misdemeanors that could be deportable offenses;2 the state legislature could end this hardship for families of lawfully present immigrants by reducing the possible sentence of misdemeanors by a single day from 365 to 364 days.
CRIMES COULD LEAD TO DEPORTATION
Among other grounds, a noncitizen’s criminal activity triggers deportation under federal law if the noncitizen is convicted of a “crime involving moral turpitude” generally within five years of entering the United States.3 A crime involving moral turpitude has been vaguely defined as a “reprehensible act” with a mens rea of at least recklessness4 and may include most crimes involving theft or fraud5 as well as certain assaultive crimes.6
Some of the most common ways that a lawful permanent resident can land themselves in danger of removal have to do with impulsive behavior such as shoplifting or low-level embezzlement. Critically, a “conviction” for immigration purposes includes circumstances where a noncitizen enters “a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and ... the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.”7 This means that a noncitizen who accepts a plea involving probation, fines, or any punishment for a crime is considered to have been convicted. This includes instances where diversionary programs are used to avoid convictions under state law.8
Anecdotally, few people who plead to or are convicted of so-called one-year misdemeanors in Michigan seem to receive or serve a full year sentence.9 Nevertheless, the fact that Michigan law allows for a 365-day sentence makes these crimes potentially deportable offenses.
Michigan has several misdemeanors that are punishable by “imprisonment for not more than 1 year.”10 These include activities such as larceny of property worth $200-$1,000 or larceny of an item worth less than $200 where the person has stolen before.11 These appear to be two of the most common one-year misdemeanors that give rise to deportability. Similarly, a single theft or embezzlement of $200-$1,000 that occurred using the internet or repeated low-level internet offenses also result in a one-year misdemeanor.12 However, conduct such as littering where garbage hits a moving vehicle,13 driving a motorcycle more than once without a license,14 hunting a moose without a license,15 or refusing to provide a DNA sample when required16 are also one-year misdemeanors.
It is worth noting that undocumented Michiganders who come to the attention of law enforcement may face removal regardless of the severity of any offense they did or didn’t commit. A person is subject to removal from the United States regardless of their ties simply because they lack a visa or other permission to be present, with few potential defenses.17 The people who would benefit from this proposed change in Michigan law are those who have already obtained authorization to be in the country. For example, a change to Michigan’s one-year misdemeanor laws could impact a teen who was adopted by U.S. citizens, someone who came to the United States to marry a U.S. citizen, or an entrepreneur who brought a business to the U.S.
Furthermore, many more serious or violent crimes would still trigger deportation after this change. People who commit crimes involving domestic violence, stalking, child abuse or neglect, or violations of protection orders may still be deportable because of a separate ground of deportability for crimes involving domestic violence.18 This means that individuals who commit misdemeanors involving this type of conduct would still be subject to potential deportation for those crimes regardless of any change in sentencing laws.
MICHIGAN SHOULD AMEND ITS STATUTES
Many states have corrected the wording of their misdemeanor sentences to end this injustice. States like Utah,19 Colorado,20 Nevada,21 Washington,22 Rhode Island,23 New York,24 and California25 have already passed changes akin to what this article proposes. Many of these states were able to enact simple legislation to alter their statutes by replacing phrases such as “one year” or “twelve months” with “364 days.”
A similar change to Michigan law may be slightly different given that the punishments for misdemeanors are found throughout the Michigan Code. This could allow Michigan lawmakers to take a surgical approach and determine which misdemeanors they most want to make ineligible for deportation. Alternatively, Michigan lawmakers could pass legislation that changes all one-year misdemeanors to 364-day misdemeanors by enacting a separate statute that alters all misdemeanors currently punishable by one year.
Reducing the number of deportable misdemeanors would have benefits far beyond each individual case. Many community members are hesitant to report crimes that may lead to their neighbors being removed from the country. And if a noncitizen faces a charge such as this, their defense attorney would presumably engage in plea negotiation with the goal of mitigating the threat of deportation. Plea negotiation would be much simpler if the threat of deportation could be taken off the table without lessening the noncitizen’s criminal accountability.
Immigration attorneys regularly talk to noncitizens in the crosshairs of a one-year misdemeanor and the deportability consequences it carries. Figures are difficult to come by, but my research suggests that 907 individuals whose most serious crime was a misdemeanor were deported from Michigan between 2015 and 2020.26 For each family torn apart when someone is deported, the negative impacts on the noncitizen’s children and community far outweigh the societal cost of these misdemeanors. The Michigan Legislature could easily enact a solution to keep more parents, workers, and productive community members in our state.