Post-Conviction Relief for Immigrants

The long-standing rule in the BIA is that the most recent criminal sentence in a criminal case is the sentence that counts for immigration purposes.[159]  Therefore, under current law, it is not necessary to obtain an order vacating the sentence as legally invalid; any subsequent order modifying the original sentence will be effective to remove the adverse immigration consequences of the prior sentence.[160] 

Thus, an order modifying a condition of probation that imposes a sentence of one year or more in custody, and replacing it with a new order imposing no more than 364 days in custody, is effective.  The modification order is now accepted by the BIA as eliminating the adverse immigration effects of the prior one-year sentence.  This is often possible as a discretionary decision of the sentencing judge, and will be effective even if it is explicitly motivated by a desire to avoid the adverse immigration consequences of the sentence.

            The Third Circuit recently held that a state sentencing court’s alteration of the amount of restitution ordered from $11,522 to $9,999 did not alter the aggravated felony character of the conviction, since it was undisputed that the former figure accurately reflected the loss to the victim and that the conviction was for a fraud offense.  The relevant consideration was the amount of the loss, not the amount of restitution, and the court order did not represent a new finding on the amount of the loss.[161]  The Third Circuit did not discuss the basis for its conclusion as to the amount of the loss, and mentioned no “record of conviction” objection on the part of the noncitizen.  The Third Circuit commented that the state sentencing court altered the restitution amount solely to avoid immigration consequences, and referred to the Fifth Circuit’s decision indicating that “[w]hen a court vacates an otherwise final and valid conviction on equitable grounds merely to avoid the immigration-law consequences of the conviction, it usurps Congress's plenary power to set the terms and conditions of American citizenship and the executive's discretion to administer the immigration laws.”[162]  The Third Circuit, however, is incorrect in suggesting that Renteria is relevant to the present context.  Renteria involved state rehabilitative relief vacating a conviction; it did not involve any alteration in a sentence.  BIA and circuit law holds that immigration authorities are bound by the most recent sentence, whatever the reason for its alteration, and Renteria is not to the contrary, since it interpreted the 1996 statutory definition of “conviction,” instead of the completely different statutory definition of “sentence.”

            An alteration of a judgment that would be effective to eliminate the adverse immigration consequences of a sentencing-court finding that the loss from a specific conviction exceeded $10,000, for purposes of avoiding a fraud aggravated felony conviction, could be arranged by (1) obtaining a new sentence in which the loss attributable to the count of conviction was $10,000 or less; (2) avoiding any indication in the moving papers of an immigration purpose in altering the finding as to the amount of the loss; and (3) arranging a written agreement (analogous to a plea agreement) as to the sentence specifying the amount of loss resulting from the count of conviction was $10,000 or less.[163]

[159] Matter of Song, 23 I. & N. Dec. 173 (BIA 2001); 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).

[160] E.g., Matter of Corso, No. A18 079 714 (BIA December 29, 1999) (district court order vacating judgment and imposing a new sentence of 10 months in custody, citing “unique family circumstances warranting a downward departure” eliminated former one-year sentence and thus eliminated aggravated felony conviction); United States v. Ko, 1999 U.S. Dist. LEXIS 19369 (S.D.N.Y. 1999) (granting coram nobis to reduce federal sentence expressly to avoid aggravated felony conviction).

[161] Munroe v. Ashcroft, ___ F. 3d ___, 2003 WL 22953510 (3d Cir. December 16, 2003) (New Jersey conviction of theft by deception, in violation of N.J.S.A. 2C: 20-4, considered aggravated felony fraud conviction under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), for deportation purposes under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), where actual loss to victim exceeded $10,000, even though the sentencing judge eventually reduced the amount of restitution that he was required to pay from $11,522 to $9,999, because the critical fact is the amount of loss, not the amount of restitution, so district court properly denied habeas relief).

[162] Ibid., quoting Renteria-Gonzalez v. INS, 322 F.3d 804, 812 (5th Cir. 2002) (citation omitted).

[163] Chang v. INS, 307 F.3d 1185 (9th Cir. Oct. 11, 2002) (conviction of bank fraud for knowingly passing a $605.30 bad check held not to constitute an aggravated felony, under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), as a conviction of an offense involving fraud for which the loss to the victim(s) exceeded $10,000, even though losses resulting from the entire scheme described in the presentence report exceeded $30,000, since plea agreement specified loss from the count of conviction as $605.30).