Post-Conviction Relief for Immigrants

            The immigration authorities may not remove a noncitizen to a different country if his or her life or freedom would be threatened in that country because of race, religion, nationality, membership in a particular social group, or political opinion.[37]  This form of relief is now called “restriction on removal,” and was formerly called “withholding of deportation.”  A noncitizen is disqualified from this form of relief if s/he has a “final judgment of conviction” of a “particularly serious crime” (PSC).[38]  If a noncitizen “has been sentenced to an aggregate term of imprisonment of at least 5 years,” s/he “shall be considered to have committed a particularly serious crime.”[39]  Even if the total sentence imposed is less than five years, the Attorney General may still conclude the noncitizen has been convicted of a PSC.[40]

            Counsel may avoid this result by vacating or reducing sufficient aggravated-felony sentences imposed so that the remainder of the aggregate of all such sentences is less than five years.

[37] INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A).

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

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

[40] Ibid.