The California Way: An Analysis of California’s Immigrant-Friendly Changes to its Criminal Laws

Abstract

Immigration falls exclusively within the federal government’s
purview, and states are generally prohibited from legislating in the
area of immigration. At the same time, however, a large number of
individuals are subject to deportation, denial of admission, and denial
of immigration benefits based upon convictions of state crimes, over
which states generally have exclusive authority. At a time when both
the federal government and some states seem determined to expand
the immigration consequences of even relatively minor criminal con-
duct, is there anything states can do to protect their noncitizen re-
sidents? Surprisingly, yes, quite a bit. California, for example,
considers the term “Californian” to cover all of its residents, whether
they are citizens, lawful permanent residents, or present without law-
ful status. This approach has led the state to enact a series of changes
to its criminal statutes to reduce, in thoughtful and innovative ways,
the immigration effect of some criminal conduct. Because the Califor-
nia Legislature is not the final authority in determining whether a
criminal history will result in immigration consequences, its changes
are only as effective as their implementation by California courts and
recognition by the federal immigration authorities.