It is often easier to obtain a sentence-reduction order than to vacate the conviction entirely.  The immigration authorities, however, sometimes regard such orders as efforts to subvert the intent of Congress, and take the position that they are ineffective to eliminate the immigration consequences of the sentence, on any of a number of grounds.  See generally Chapter 4, supra.  It is critical to make sure, when the order is obtained, that it will be regarded as sufficient by the immigration authorities, or at least the immigration and federal courts, to eliminate the original sentence that is triggering the immigration problem. 

 

At the present time, a court order reducing a sentence — even on discretionary or equitable grounds, will be considered sufficient to render the second sentence conclusive for immigration purposes.  Vacating the conviction itself, on a ground of legal invalidity, has the effect of vacating the associated sentence.  Because an order vacating a conviction on a ground of legal invalidity is sufficient to eliminate the conviction for immigration purposes, it would be safer to vacate a sentence on a ground of legal invalidity as well.  To insulate an order vacating a sentence from possible attack in immigration court as ineffective to erase the immigration effects of the sentence, it would be safest to vacate the sentence on a ground of legal invalidity having nothing to do with its immigration consequences.

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Matter of Garcia-Mendoza, unpublished (BIA Feb. 15, 2013) (A200 582 682) (actual confinement of 180 days or more constitutes a statutory bar to showing good moral character, even after state court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 " 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.).

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Matter of Garcia-Mendoza, unpublished (BIA Feb. 15, 2013) (A200 582 682) (actual confinement of 180 days or more constitutes a statutory bar to showing good moral character, even after state court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).

POST CON RELIEF - SENTENCE - VACATION OR REDUCTION OF SENTENCE IS EFFECTIVE FOR IMMIGRATION PURPOSES REGARDLESS OF THE CRIMINAL COURT'S REASONS FOR GRANTING IT
Matter of Cota-Vargas, 23 I. & N. Dec. 849 (BIA 2005) (criminal court's decision to modify or reduce a criminal sentence nunc pro tunc is entitled to full faith and credit by the Immigration Judges and the Board of Immigration Appeals, and such a modified or reduced sentence is recognized as valid for purposes of the immigration law without regard to the trial court's reasons for effecting the modification or reduction), clarifying Matter of Song, 23 I. & N. Dec. 173 (BIA 2001), distinguishing Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), vacated by Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006).
http://www.usdoj.gov/eoir/vll/intdec/vol23/3522.pdf

First Circuit

CONVICTION " STATUTORY DEFINITION " FINE
Vivieros v. Holder, ___ F.3d ___ (1st Cir. Jun. 25, 2012) (Massachusetts conviction of shoplifting, under Mass. Gen. Laws ch. 266, 30A, constituted a conviction for immigration purposes, under INA 101(a)(48)(A), 8 U.S.C. (a)(48)(A), where the defendant pleaded guilty and received a fine of $250, which was later vacated, so the ultimate disposition was a guilty finding with no fines or costs, because a formal judgment of guilt had been entered and the fine was not vacated on a ground of legal invalidity). Note: This decision is mistaken. Its reasoning is as follows: The petitioner endeavors to alter this reality by insisting that the subsequent vacation of the $250 fine transmogrifies his case into one in which no sentence was ever imposed. This attempt to rewrite history cannot survive scrutiny. We previously have held that when an alien's conviction is vacated for reasons other than procedural or substantive error, he remains convicted for immigration purposes. See, e.g., Rumierz v. Gonzales, 456 F.3d 31, 39"40 (1st Cir.2006); Herrera"Inirio v. INS, 208 F.3d 299, 305 (1st Cir.2000). Other courts uniformly have hewed to this rationale. See, e.g., Dung Phan v. Holder, 667 F.3d 448, 452"53 (4th Cir.2012); Poblete Mendoza v. Holder, 606 F.3d 1137, 1141 (9th Cir.2010); Saleh v. Gonzales, 495 F.3d 17, 24"25 (2d Cir.2007); Cruz v. Att'y Gen. of U.S., 452 F.3d 240, 245 (3d Cir .2006). It necessarily follows that the vacation of a fine for reasons unrelated to procedural or substantive error does not dissipate the underlying conviction for purposes of section 1227(a)(2)(A)(ii). The petitioner's case falls within this taxonomy. There is no indication in the record that his fine for shoplifting was vacated on account of either procedural or substantive error. To the contrary, the state court docket reflects that roughly five months after the fine was imposed, it was waived on recommendation of [the] Probation Dept. When the petitioner's counsel sought clarification regarding the final disposition, the state court wrote that the docket should reflect [a] guilty finding with no fines or costs. The implication of these docket entries is pellucid: the state court, exercising clemency, waived the petitioner's fine at the behest of his probation officer. There is not the slightest hint that the waiver came about because of some legal infirmity in the shoplifting proceedings. Accordingly, the shoplifting conviction remains a formal judgment of guilt, 8 U.S.C. 1101(a)(48)(A), and endures for immigration law purposes. This is mistaken because it confuses the requirements for an effective vacatur of a conviction (a ground of legal invalidity), with an alteration in the sentence, which is effective for immigration purposes regardless of the reason for the sentence change. Compare Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), with Matter of Cota-Vargas, 23 I. & N. Dec. 849 (BIA 2005). The consistent rule, until now, has been that it is the final state sentence that is binding on the immigration authorities, regardless of any reason given for a change in the sentence.

Lower Courts of Ninth Circuit

POST-CON - REDUCTION OF SENTENCE
State v. Quintero-Morelos, 133 Wn. App. 591 (Jun. 22, 2006) ("The day following sentencing, the judge decided to reduce the sentence by one day, which prevented the defendant's federal deportation, because defense counsel failed at the time of the original sentencing to inform the judge that the defendant was subject to deportation. The question presented is whether the judge had discretionary authority to set aside the judgment on the ground of neglect or carelessness of defense counsel. We conclude that he did and we affirm that exercise of discretion.").

Eleventh Circuit

SENTENCE - SENTENCE IMPOSED
Hernandez v. U.S. Atty Gen., __ F.3d __, 2008 WL 160265 (11th Cir. Jan. 18, 2008) (twelve month suspended sentence, and one year probation, is a sentence imposed of one year, even if probation is later revoked and the defendant required to serve 22 days in jail).

Other

CRIMINAL DEFENSE - SENTENCE
M. Shein, Cultural Issues in Sentencing, in L. FRIEDMAN RAMIREZ, ED., CULTURAL ISSUES IN CRIMINAL DEFENSE 625 (2d ed. 2007).

POST CON RELIEF - WASHINGTON STATE - MODIFYING SENTENCE
The DHS attorneys in Washington state have been arguing that a sentence modification is not valid under Washington law based, inter alia, upon their (erroneous) analysis that the district court lacked jurisdiction to modify the sentence.  However, IJ Kandler appears to have bought their analysis, holding that even under Mattter of Song and it's predecessor decisions, the sentence modification order must be valid under state law.  Even though DHS is wrong in their argument, IJ Kandler is correct that BIA precedent requires valid state law orders in order for PCR to be effective.      Additionally, the DHS has attacked the validity of the PCR sentence modification saying that it doesn't comport with Washington's PCR exceptions to one year time limit on PCR motions (in this case, a Rule 7.8(b) motion (CrRLJ 7.8(b), Washington's rule-based version for a writ of coram nobis, which is no longer available here)).  And even if it did, DHS says, modifying the sentence for immigration purposes does not fall within the scope of any of the five permissible grounds for modifying a sentence or vacating a conviction under the applicable Rule 7.8(b) (1. mistakes, inadvertence, surprise, excusable neglect or irregularity in obtaining a judgment or order; 2. newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under rule 7.5; 3.fraud, misrepresentation, or other misconduct of an adverse party; 4. the judgment is void; or 5. any other reason justifying relief from the operation of the judgment.)      Their argument against the exceptions to the 1 year time limits is bogus in light of a case that permits equitable tolling (State v. Littlefair).  However, their other argument - that such sentence modifications aren't permitted under the grounds of 7.8(b) was recently given traction by Quintero-Morelos, __ P.2d __, 2004 Wash. App. LEXIS 2340 (Wa. Ct. App. Oct. 2004).  Fortunately, this incorrectly decided appeal was withdrawn a month later (appellate attorney failed to file a brief) and is no longer available for citation.  However, the appeal continues and the Washington Association of Prosecuting Attorneys will certainly move again to publish the bad decision.      BOTTOM LINE:  There are usually plenty of legal bases - or at least some non-immigration-equities related basis - for modifying the sentence (e.g. ineffective assistance of counsel to not deal with immigration issue at original sentencing).  I certainly recommend - at least for Washington state practitioners - to be aware of the current state of flux and exercise care in getting sentence modification orders.       Ann Benson, Directing Attorney