The final sentence imposed by the criminal court determines the significance of the conviction for immigration purposes.  For example, where the original conviction (and sentence) had been vacated, and a new plea entered, but no new sentence had been imposed since the prior sentence had been completely satisfied, the new plea did not result in a conviction under the new 1996 statutory definition of conviction, since no “restraint on liberty” had been imposed after and as a result of the new plea.[317]  The BIA has long held it is the final sentence that counts for immigration purposes, rather than the initial sentence that has been set aside or altered.[318]

 

In Matter of Pickering,[319] the BIA held that a Canadian court order purporting to vacate a conviction was ineffective to eliminate its immigration consequences since the “quashing of the conviction was not based on a defect in the conviction or in the proceedings underlying the conviction, but instead appears to have been entered solely for immigration purposes.”[320]  The immigration authorities may attempt to argue that Pickering stands for the proposition that a criminal court order vacating or modifying a sentence is ineffective if it appears to have been entered solely for immigration purposes.  This argument should be rejected.

 

Pickering interpreted INA § 101(a)(48)(A), the statutory definition of conviction.  The question of what constitutes a sentence, however, is determined under a completely different statute.[321]  Pickering confronted an order vacating a conviction, not an order reducing a sentence.  It therefore did not alter the law with respect to sentences.[322]

 

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 was modified.[323]  After the 1996 legislation, the BIA reaffirmed the same rule.[324]  Pickering did not even mention, much less overrule, Matter of Song. 

 

The BIA’s decision in Pickering does not modify Song, in which the Board of Immigration Appeals held that a noncitizen was not deportable under the aggravated felony ground where the state court reduced his sentence for a theft conviction from one year to 360 days.  In Song, the BIA also expressly differentiated between rehabilitative schemes that deal with the existence of a conviction and sentencing provisions that alter a sentence.  There are sound reasons to maintain distinct tests for sentence modifications and the existence of conviction.

 

Moreover, the Ninth Circuit has recently reaffirmed the rule of Song, even after Pickering was decided.[325]  Therefore, the most recent sentence determines the immigration consequences of sentence and Pickering does not change this rule.

 

[317] Griffiths v. INS, 243 F.3d 45 (1st Cir. 2001).

[318] 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 by Board of Pardons and Paroles).

[319] Matter of Pickering, 23 I. & N. Dec. 621 (BIA June 11, 2003).

[320] Id. at 625.

[321] INA § 101(a)(48)(B), 8 U.S.C. § 1101(a)(43)(F).

[322] See R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S.Ct. 2538, 2545, n.5 (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 (1993).

[323] 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).

[324] Matter of Song, 23 I. & N. Dec. 173 (BIA 2001) (new definition of “conviction” and Matter of Roldan, 22 I. & N. Dec. 512 (BIA 1999), 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. 

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

BIA

POST CON RELIEF " SENTENCE " COMMUTATION OF SENTENCE " COMMUTATION OF SENTENCE REPLACES THE ORIGINAL SENTENCE, BUT DOES NOT ELIMINATE THE CONVICTION
Matter of J, 6 I&N Dec. 562, 569 (BIA 1955) (commutation by the President of the United States or the Governors of States ha[s] exactly the same legal effect as though the commuted sentence had been imposed by the court in the first instance and . . . after commutation, the commuted sentence is the only one in existence.).

Ninth Circuit

SENTENCE - FELONY - CALIFORNIA CONVICTION OF FELONY-MISDEMEANOR WITH PROBATION CONSIDERED FELONY UNLESS REDUCED
United States v. Diaz-Argueta, 564 F.3d 1047 (9th Cir. Apr. 24, 2009) ("In the parlance of California law enforcement, a violation of the statute is a "wobbler" that may be punished either as a felony or as a misdemeanor. As the United States Supreme Court explains, 'Under California law, a wobbler is presumptively a felony and remains a felony except when the discretion is actually exercised to make the crime a misdemeanor.'"; California conviction of felony-misdemeanor, under Penal Code 245(a)(2), with imposition of sentence suspended and probation, remains a felony until judgment), quoting Ewing v. California, 538 U.S. 11, 16 (2003); citing Garcia-Lopez v. Ashcroft, 334 F.3d 840, 844-45 (9th Cir.2003); United States v. Qualls, 172 F.3d 1136, 1137-38 (9th Cir.1999); United States v. Robinson, 967 F.2d 287, 292-93 (9th Cir.1992) (no evidence that presumption that conviction is a felony has been overcome). See also, People v. Esparza, 61 Cal.Rptr. 167, 169 (1967).