Wednesday, March 10, 2010

A postconviction sentence modification may be effective in avoiding a conviction for immigration purposes or to eliminate an aggravated-felony ground of deportability.

Where a criminal court vacated the 1-year prison sentence of an alien convicted of a theft offense and revised the sentence to 360 days of imprisonment, the alien does not have a conviction for an aggravated felony within the meaning of section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (Supp. V 1999). Matter of Song, 23 I. & N. Dec. 173 (BIA 2001). 

The Board gave effect to a sentence reduction and terminated removal proceedings for Min Song, an individual whose one-year sentence for theft was decreased to 360 days. The reduced sentence, the BIA ruled, effectively removed Song from the reach of provisions in the Immigration and Nationality Act relating to the definition of "aggravated felony."

Song, a native Korean who had been admitted to the U.S. as a lawful permanent resident in 1981, was convicted of theft and sentenced to a year in prison in the late 1980s. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 amended the INA's definition of "aggravated felony" to include theft offenses for which the term of imprisonment is at least one year. Individuals found removable for aggravated felony convictions are also rendered ineligible for any relief from removal. Based on his theft conviction, Song was placed in removal proceedings and subsequently ordered removed by the immigration court.

On appeal, Song challenged the immigration court's finding that his aggravated felony conviction made him ineligible for relief under the INA. Prior to filing his appellate brief, Song applied for and obtained an order vacating and revising his previous sentence nunc pro tunc to 360 days. Nunc pro tunc orders are used by courts to revise prior judgments or orders in matters where the court originally had jurisdiction. The new order replaces the original and is considered to have the same status, notwithstanding the modification.

In his appellate brief, Song presented new evidence demonstrating that his criminal sentence had been reduced to 360 days. As Song's new conviction was for a term of less than one year, the BIA determined that he could no longer be considered an aggravated felon. In reaching its decision, the BIA relied on Matter of Martin, 18 Int. Dec. 226 (1982), in which it ruled that where an individual is resentenced for a crime, the new sentence determines whether or not he or she is deportable.

The BIA distinguished its ruling in Matter of Roldan-Santoyo, Int. Dec. 3377 (BIA 1999), which held that the IIRIRA provision defining "conviction" for immigration purposes precludes the BIA from giving effect to expungements or other post-conviction state rehabilitative orders. In this case the definition of "conviction" is not at issue; the sentence reduction did not eliminate the fact that there was a conviction, but rather changed the term of imprisonment such that the conviction falls outside the definition of an aggravated felony.

There are several different sentencing options which judges may exercise when sentencing someone for a criminal offense. These options can include a sentence to incarceration, deferred adjudication, probation, supervision, conditional discharge, and first-offender probation.

A deferred adjudication sentence is a form of judge-ordered supervision which permits a defendant to accept responsibility for the crime without suffering all of the potential consequences and liabilities from the entry of a formal conviction under state law. The judge defers final decision on the charge, places the person on probation, and sets conditions of probation which, if fulfilled, avoid a final conviction under state law.

Where a deferred adjudication statute requires a plea of guilty, a plea of nolo contendere (no contest), or an admission of sufficient facts to warrant a finding of guilt and some form of punishment is ordered (i.e., the program itself), such adjudication is considered a conviction for immigration purposes.

Imposition of court costs and surcharges qualifies as a penalty or punishment for immigration purposes under INA § 101(a)(48)(A)(ii). In Matter of Cabrera, the Board addressed the issue of whether the imposition of costs and surcharges following a plea in criminal proceedings constitutes a “penalty” or “punishment” and, therefore, a conviction under INA § 101(a)(48)(A)(ii).In that case, the noncitizen entered a plea of nolo contendere in Florida state court to the charge of possession of a controlled substance, and adjudication of guilt was withheld. Under Florida law, people who plead guilty or nolo contendere, including in cases where adjudication is withheld, can be assessed additional costs and surcharges. The noncitizen in this case was assessed $458 following his plea. The Board, in reaching its decision, reviewed federal and state case law which held that costs, surcharges and other assessments constitute a “penalty” or “punishment” within the criminal scheme. For these reasons, the Board held that the noncitizen was subject to removal as a result of a conviction of violating a law relating to controlled substances.

  • Iqbal v. Bryson, 2009 WL 192505 (E.D. Va. 2009)(New York pretrial diversion adjudication not a conviction for immigration purposes where it does not require defendant to make a plea of guilty).
  • Madriz-Alvarado v. Ashcroft, 383 F.3d 321 (5th Cir. 2004)In re Salazar-Regino, 23. Dec. 223, 2002 WL 339535 (B.I.A. 2002)In re Punu, 22 . Dec. 224, 1998 WL 546634 (B.I.A. 1998)
  • Matter of Cabrera, 24 Dec. 459 (B.I.A. 2008)
  • In re Song, 23 Dec. 173, 2001 WL 1030900 (B.I.A. 2001)
  • In re Cota-Vargas, 23 Dec. 849, 2005 WL 3105750 (B.I.A. 2005)(Board gave effect to sentence reduction even where the sole purpose was to avoid immigration consequences, holding that, where a sentence was modified nunc pro tunc expressly to avoid deportation for an aggravated felony, the immigration court and the Board must recognize the modified sentence); In re Pickering, 23 Dec. 621, 2003 WL 21358480 (B.I.A. 2003)(distinguished).

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