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PRACTICE ADVISORY " CONVICTION " SENTENCE " SENTENCE REQUIRED FOR CONVICTION
There is some tension between the rule that the original sentence is added to probation-violation sentences, on the one hand, and the Song/Cota BIA cases on sentence modification that state that it is the final sentence that governs for purposes of assessing the immigration consequences of a judgment. Matter of Song, 23 I. & N. Dec. 173 (BIA 2001); Matter of Cota-Vargas, 23 I. & N. Dec. 849 (BIA 2005). If state probation violation procedure provides that a defendant receives credit for time served originally against a probation violation sentence, then the original and probation violation sentences would not be added together. For example, if the defendant received a six-month sentence originally, then a nine-month sentence on a violation of probation, s/he would only have to serve three of the nine months probation violation sentence. Under those circumstances, there would be an argument under Song that the final sentence for the offense is nine months. Many, if not most states, however, do not have such a rule. For example, in New York, the probation violation sentence imposed is in addition to the original jail term. New York Penal L. 60.01(4). The same is true in California, unless the court orders otherwise. On a probation violation sentence, defense counsel can ask that the original sentence be vacated and replaced by the probation violation sentence, and the defendant can if necessary waive credit for time already served. Under these circumstances, the two sentences would not be added together, because the first sentence has been vacated, and only then is the second sentence imposed " each of which is by itself too short to trigger aggravated felony treatment for the conviction. As the Board stated: "we see nothing in the language or stated purpose of section 101(a)(48)(B) that would authorize us to equate a sentence that has been modified or vacated by a court ab initio with one that has merely been suspended." Matter of Song, 23 I&N Dec. 849, 852 (BIA 2001). Thanks to Isaac Wheeler.