Post-Conviction Relief for Immigrants

(F)  Validity of Orders Vacating Sentence.  Pickering interpreted the statutory definition of conviction.[64]  The question of what constitutes a sentence, however, is determined under completely different statutes.[65]  Pickering confronted an order vacating a conviction, not an order reducing a sentence.  It therefore did not alter the law with respect to sentences.[66]

            The BIA has long held that it is the most recent sentence that governs for immigration purposes, regardless of the reason why an original sentence may have been modified.[67]  Pickering did not even mention, much less overrule, Matter of Song.  Moreover, the Ninth Circuit has recently reaffirmed this rule, even after Pickering was decided.[68]  Therefore, the most recent sentence determines the immigration consequences of sentence, regardless of the ground upon which the original sentence was vacated.  See § § 7.50, et seq., infra.

[64] INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A).

[65] INA § 101(a)(48)(B), 8 U.S.C. § 1101(a)(43)(F), et al. [“sentence imposed” requirement for various aggravated felonies].

[66] See R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S.Ct. 2538, 2545, n.5, 120 L.Ed.2d 305 (1992) (“It is of course contrary to all traditions of our jurisprudence to consider the law on [a] point conclusively resolved by broad language in cases where the issue was not presented or even envisioned”); United States v. Vroman, 975 F.2d 669, 672 (9th Cir. 1992) (precedent not controlling on issue not presented to prior panel), cert. denied, 507 U.S. 996, 113 S.Ct. 1611, 123 L.Ed.2d 172 (1993).

[67] Matter of Martin, 18 I. & N. Dec. 226 (BIA 1982) (correction of illegal sentence); Matter of H, 9 I. & N. Dec. 380 (BIA 1961) (new trial and sentence); Matter of J, 6 I. & N. Dec. 562 (AG 1956) (commutation).  After the 1996 legislation, the BIA reaffirmed the same rule. Matter of Song, 23 I. & N. Dec. 173 (BIA 2001) (new definition of “conviction” and Matter of Roldan, 22 I. & N. Dec. 486 (BIA 1999) (en banc), removal orders reversed sub nom. Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), do not alter the rule that vacating a sentence nunc pro tunc and imposing a revised sentence of less than 364 days will prevent the conviction from being considered an aggravated felony because the latest sentence controls for immigration purposes).

[68] Garcia-Lopez v. Ashcroft, 334 F.3d 840 (9th Cir. June 26, 2003) (government must honor discretionary order reducing felony to misdemeanor).