Aggravated Felonies

(C)  Orders Vacating Sentence.  Therefore, the safest course — as is the case with vacating the conviction itself — is to obtain a court order vacating or setting aside the sentence as legally invalid on some specified ground.  This holds true regardless of the vehicle used to mount the attack, such as habeas corpus, coram nobis, a motion to vacate, a direct appeal, and even a petition for a writ of audita querela — as long as the order recites that the sentence is vacated because it is legally invalid.

The next safest course of action is to word the order as “vacating and setting aside” the previous custody order (without mentioning the grounds), even if the order is granted as a matter of discretion.  The court must then impose a new non-deportable sentence.  This is very likely to be effective, because the BIA may not “look behind” a state court order to determine whether the court acted in conformity with state law, but must instead afford “full faith and credit” to the judgment.[581]

[581] Matter of Rodriguez-Ruiz, 22 I. & N. Dec. 1378 (BIA 2000).  The BIA rejected the Service’s argument that a conviction vacated for purposes of avoiding removal, rather than based on a ground of legal invalidity, remains a conviction under the INA, and held that a vacated conviction will not constitute a conviction for immigration purposes so long as it is not vacated under a state rehabilitative statute.  In an unpublished decision, the BIA held that a state court order modifying a one-year sentence nunc pro tunc to reflect a sentence of 220 days’ confinement was effective to eliminate the previously-imposed one-year sentence as a basis to find a conviction to be an aggravated felony.  Matter of Barragan, A14-262-818 (BIA June 16, 1999), citing Matter of Martin, 18 I. & N. Dec. 226 (BIA 1982) (deportation proceedings terminated because noncitizen’s sentence had been modified to less than one year).