Criminal Defense of Immigrants


§ 10.16 (B)

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(B)  Specific Tactics.  Several specific tactics can be used to avoid actual service of all or part of a sentence.


(1)  Execution Suspended.  If execution of sentence was suspended so that the person literally did not spend the days in jail, there was no confinement.  This does not eliminate the sentence ordered by the court for immigration purposes.  See § 10.64, infra.  This tactic does, however, eliminate actual service of the sentence which therefore will not trigger those immigration consequences that are triggered by actual service of a certain length of time in confinement.  See § § 10.73-10.75, infra. 


(2)  Conduct Credits; Parole.  Early release from confinement under various programs such as good behavior, or parole, will also assist the noncitizen in this way, because s/he will have been physically confined for a period shorter than the full sentence ordered by the court. 


(3)  Waiving Presentence Credit for Time Served.  If the noncitizen was held in custody for a few days on a charge which was later dismissed, those days would not count toward the total actual confinement because they were not served “as a result of conviction.”   Presentence confinement does count toward actual time served in custody as a result of a conviction if the court, at sentence, gives the person credit for this presentence time served.  See § 10.73(B), infra.  The defendant could avoid this result by waiving credit for presentence custody served.


(4)  Vacating the Conviction.  If the conviction is vacated, the actual time served for that conviction is eliminated; it is no longer time served for the conviction because the conviction no longer exists.  See § § 11.3-11.8, infra.