Many of the most common aggravated felonies constitute aggravated felonies if and only if a sentence of one year or more in custody is ordered by the court.  See § 3.61(A), supra.  If a sentence imposed of one year or more can be vacated as legally invalid, or even modified on discretionary grounds of rehabilitation or to avoid immigration consequences, that will eliminate the one year or more sentence imposed for immigration purposes, and the conviction will cease to be an aggravated felony.  See § 6.25, infra.  The 1996 statutory definition of conviction does not alter this result.  See § 6.26, infra.  Even if the sentence is not vacated, a sentence reduction resulting in a new sentence of less than one year in length will be effective to eliminate the one-year sentence for immigration purposes.  See § 6.27, infra.  There are many grounds of legal invalidity that can be urged as a basis to vacate a sentence.  See § 6.28, infra.  Once the sentence has been vacated and a new sentence less than one year in length has been imposed, or once the sentence has been reduced below one year, immigration counsel can seek to reopen and terminate removal proceedings or apply for relief from removal, since the aggravated felony conviction will no longer exist.  See § 6.30, infra.

 

The sentence imposed for a criminal conviction is relevant to the immigration consequences of an aggravated felony conviction where the aggravated felony category requires a sentence imposed of at least one year before the conviction is considered an aggravated felony.

The Third Circuit held that the criminal court’s alteration of a valid and accurate restitution order, done solely to avoid adverse immigration consequences, was ineffective to do so.[298]  The court found the reduction in the restitution amount to be “irrelevant” for two reasons.  First, the court distinguished between “restitution” and “loss.”  Second, based on a Matter of Pickering-style argument, the court noted that, “[I]t is apparent from the motion and is not disputed here that the motion was not based on a redetermination of the amount of loss caused by the crimes but was intended to alter the effect of the conviction for immigration purposes.”[299]

[298] Munroe v. Ashcroft, 353 F.3d 225 (3d Cir. Dec. 16, 2003) (New Jersey theft by deception, N.J.S.A. § 2C: 20-4, held to be aggravated felony fraud conviction under 8 U.S.C. § 1101(a)(43)(M)(i), for deportation purposes where actual loss to victim exceeded $10,000, even though sentencing judge reduced amount of restitution from $11,522 to $9,999, since critical fact is amount of loss, not restitution amount).

[299] Munroe v. Ashcroft, 353 F. 3d 225 (3d Cir. Dec. 16, 2003), referring to Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003).

Eleventh Circuit

SENTENCE - SENTENCE IMPOSED
Hernandez v. U.S. Atty Gen., __ F.3d __, 2008 WL 160265 (11th Cir. Jan. 18, 2008) (twelve month suspended sentence, and one year probation, is a sentence imposed of one year, even if probation is later revoked and the defendant required to serve 22 days in jail).