Safe Havens

(B)  Safe Haven Sentences of Less Than One Year.  The basic rule regarding these particular aggravated felony convictions — which require a one-year sentence before they will be considered aggravated felonies — is as follows:  If a noncitizen, who is convicted in state or federal court of one or more of the common crimes on the “one-year” list, receives an original sentence imposed of less than one year, the conviction is a safe haven because it does not fall within the applicable aggravated felony definition.  Later vacating the one-year sentence imposed entirely, or reducing it to a sentence of less than one year, however, will also eliminate these particular aggravated felony convictions.  See § 4.29, supra.

A single conviction may fall into more than one damaging immigration category, and cause immigration problems under a different ground of deportation, even if a non-aggravated felony sentence is obtained.[226]  For this reason, even if a conviction is on this list of one-year offenses, and even if counsel manages to obtain, or reduce the sentence to, a sentence of less than one year, it is necessary to check to make sure the conviction does not trigger adverse immigration consequences under a separate rule.  Avoiding a deportable sentence for the listed aggravated felony convictions is the single most important sentencing technique by which to save great numbers of noncitizens from deportation.[227]

[226] The most common damaging immigration categories into which the INA groups criminal convictions are: aggravated felony convictions, convictions of crimes involving moral turpitude, controlled substance convictions, firearm convictions, and domestic violence convictions.  There are some grounds of deportation and inadmissibility that are based on conduct, rather than a conviction, but they do not arise very often.  See N. Tooby, Criminal Defense of Immigrants § § 2.21 et seq. (2003).

[227] See N. Tooby, Aggravated Felonies § 3.34 (2003).