Post-Conviction Relief for Immigrants

Many critical immigration consequences hinge on the length of the “sentence imposed.”  Each category is discussed in detail below.

(1)  Many Common Convictions Become Aggravated Felonies if a Sentence of One Year or More Is Imposed.  This is the most important of the rules based on the length of “sentence imposed.”  If the sentence can be vacated or reduced, and a sentence of less than one year substituted, the conviction will no longer be considered an aggravated felony.  See § 7.5, infra.

(2)  A Sentence Imposed of More than Six Months Will Disqualify a Noncitizen from Obtaining the “Petty Offense Exception” to Inadmissibility.[8]  This exception excuses inadmissibility based on one conviction of an offense involving moral turpitude.[9]  Many forms of immigration relief depend on a finding of admissibility.  See § 7.8, infra.

(3)  Multiple Conviction Ground of Inadmissibility Requires Aggregate Sentences of Five Years or More.  A noncitizen is inadmissible if s/he has been convicted of two or more offenses, other than purely political offenses, for which the aggregate sentences to confinement were five years or more.[10]  This ground impacts noncitizens in all the different contexts in which the Petty Offense Exception and Good Moral Character apply.  See § § 7.10-7.11, infra.

(4)  Mandatory Detention Triggered by One Conviction of a Crime Involving Moral Turpitude with One-Year Sentence Imposed.  The Immigration and Nationality Act (INA) requires the Attorney General to detain any noncitizen who is deportable on the basis of a crime of moral turpitude conviction for which a sentence of one year or more has been imposed.[11]  Reduction of the sentence imposed to a sentence of less than one year will enable the noncitizen to avoid this ground of mandatory detention.  See § 7.12, infra.

(5)  Withholding of Removal Requires Avoiding Aggregate Sentences of Five Years or More as a Result of Aggravated Felony Conviction(s).  Aggregate sentences for one or more aggravated felony convictions that total five years or more disqualify a noncitizen from receiving “restriction on removal,” formerly known as “withholding of deportation,” which protects them from deportation to a country in which life or freedom would be threatened because of race, religion, nationality, membership in a particular social group, or political opinion.  See § 7.13, infra.[12] 

[8] See INA § 212(a)(2)(A)(ii), 8 U.S.C. § 1182(a)(2)(A)(ii).

[9] INA § 212(a)(2)(A)(i), 8 U.S.C. § 1182(a)(2)(A)(i).

[10] INA § 212(a)(2)(B), 8 U.S.C. § 1182(a)(2)(B).  It is not necessary that these offenses be crimes of moral turpitude, and does not matter whether the convictions resulted from one or more proceedings or schemes of criminal misconduct.  Ibid.

[11] INA § 236(c)(1)(C), 8 U.S.C. § 1226(c)(1)(C) (who is “deportable under section 1227(a)(2)(A)(i) of this title on the basis of an offense for which the alien has been sentence [sic] to a term of imprisonment of at least 1 year . . . .”).

[12] INA § 241(b)(3)(A), (B), 8 U.S.C. § 1251(b)(3)(A), (B).