Aggravated Felonies

(A)  Orders Reducing Sentences.  It is often easier to obtain a sentence-reduction order than to vacate the conviction entirely.  The immigration authorities, however, sometimes regard such orders as efforts to subvert the intent of Congress, and take the position that they are ineffective to eliminate the immigration consequences of the sentence, on any of a number of grounds.  It is critical to make sure, when the order is obtained, that it will be regarded as sufficient by the immigration authorities, or at least the immigration and federal courts, to eliminate the original sentence that is triggering the immigration problem.  At the present time, a court order reducing a sentence — even on discretionary or equitable grounds, will be considered sufficient to render the second sentence conclusive for immigration purposes.  See § § 6.25-6.27, infra. 

The long-standing rule in the BIA is that the most recent criminal sentence in a criminal case is the sentence that counts for immigration purposes.  See § § 6.25-6.27, infra.[579]  Therefore, under current law, it is not necessary to obtain an order vacating the sentence as legally invalid; any subsequent order modifying the original sentence will be effective to remove the adverse immigration consequences of the prior sentence.[580]

[579] Matter of Song, 23 I. & N. Dec. 173 (BIA 2001); 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).

[580] E.g., Matter of Corso, No. A18 079 714 (BIA Dec. 29, 1999) (district court order vacating judgment and imposing a new sentence of 10 months in custody, citing “unique family circumstances warranting a downward departure” eliminated former one-year sentence and thus eliminated aggravated felony conviction); United States v. Ko, 1999 U.S. Dist. LEXIS 19369 (S.D.N.Y. 1999) (granting coram nobis to reduce federal sentence expressly to avoid aggravated felony conviction).