Vacating the judgment will also eliminate the effect of any sentence or imprisonment resulting from the conviction.  See § 6.4, supra.  Moreover, a petition for an extraordinary writ may be brought simply for purposes of vacating the original sentence and obtaining a fresh sentencing hearing.  A new sentence imposed by the judge will be the one considered by the immigration authorities, even if the defendant has already completed serving the original sentence.[300]

 

Under well-established law, a new sentence imposed by the criminal-court judge will be the one considered by the immigration authorities, even if the defendant has already completed serving the original sentence.[301]   Even if the original sentence was not vacated for legal invalidity, but was altered in the discretion of the court, the immigration authorities consider the new sentence as governing the assessment of the immigration consequences of the conviction and sentence.

 

A state court order vacating or modifying a sentence, like an order vacating a conviction, cannot be collaterally attacked by the immigration authorities in immigration court.[302]

 

The Ninth Circuit has held that it is the final sentence that governs for immigration purposes.[303]  The same holds true for federal sentencing purposes.[304]

[300] Matter of Martin, 18 I. & N. Dec. 226 (BIA 1982) (correction of illegal sentence); Matter of H, 9 I. & N. 380 (BIA 1961) (new trial and sentence); Matter of J, 6 I. & N. Dec. 562 (AG 1956) (commutation).   See ILRC, Chapter 5 for discussion of the immigration consequences of sentences and confinement.

[301]Matter of Martin, 18 I. & N. Dec. 226 (BIA 1982) (correction of illegal sentence); Matter of H, 9 I. & N. 380 (BIA 1961) (new trial and sentence); Matter of J, 6 I. & N. Dec. 562 (AG 1956) (commutation); Matter of Song, 23 I. & N. Dec. 173 (BIA 2001) (finding that the new definition of “conviction” and the decision of Matter of Roldan, do not alter the fact 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); United States v. Hovsepian, 307 F.3d 922 (9th Cir. 2002) (grounds for Federal Rule of Criminal Procedure Rule 35 motion to vacate sentence), vacated on grant of rehearing en banc, 326 F.3d 1041 (9th Cir. Apr. 7, 2003).  See ILRC, Chapter 5 for discussion of the immigration consequences of sentences and confinement.

[302] Renteria-Gonzalez v. INS, 322 F.3d 804, 811 n.5 (5th Cir. Feb. 27, 2003) (amending opinion on denial of rehearing) (“[T]he INS cannot collaterally attack the Order To Vacate, even for want of jurisdiction, because it did not directly appeal that order in 1992 . . . .”), citing Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 377, 60 S.Ct. 317 (1940) (holding that a “decree sustaining [subject matter] jurisdiction against attack, while open to direct review, is res judicata in a collateral action”); Royal Ins. Co. of Am. v. Quinn-L Capital Corp., 960 F.2d 1286, 1293 (5th Cir. 1992) (“If the parties against whom judgment was rendered did not appeal, the judgment becomes final and the court’s subject matter jurisdiction is insulated from collateral attack.”).

[303] Garcia-Lopez v. Ashcroft, 334 F.3d 840 (9th Cir. June 26, 2003) (California discretionary court order reducing a conviction of violating Penal Code § 487.2, grand theft from the person, from a felony with a three-year maximum to a misdemeanor with a maximum no greater than one year, was binding upon the immigration courts for purposes of qualifying the offense under the petty offense exception to inadmissibility for a crime of moral turpitude, 8 U.S.C. § 1182(a)(2)(A)(ii)(II), so the noncitizen was eligible for suspension of deportation).

[304] Mateo v. United States, 276 F.Supp.2d 186 (D. Mass. Aug. 12, 2003) (a state court nunc pro tunc order terminating state probation as of a date prior to commission of federal offenses, granted after federal sentencing, requires that petitioner’s 28 U.S.C. § 2255 petition be allowed and the petitioner’s sentence be recalculated).

POST CON RELIEF " SENTENCE " IMMIGRATION CONSEQUENCES " REDUCTION OF SENTENCE INEFFECTIVE
Matter of Garcia-Mendoza, unpublished (BIA Feb. 15, 2013) (A200 582 682) (actual confinement of 180 days or more constitutes a statutory bar to showing good moral character, even after state court nunc pro tunc sentence reduction of the sentence imposed to 166 days).

BIA

POST CON RELIEF " SENTENCE " IMMIGRATION CONSEQUENCES " REDUCTION OF SENTENCE INEFFECTIVE
Matter of Garcia-Mendoza, unpublished (BIA Feb. 15, 2013) (A200 582 682) (actual confinement of 180 days or more constitutes a statutory bar to showing good moral character, even after state court nunc pro tunc sentence reduction of the sentence imposed to 166 days).