Criminal Defense of Immigrants

(C)  Second Sentence Governs for Immigration Purposes.  Where a court imposes a second sentence for a parole violation, the second sentence controls the immigration consequences.  See § 11.10, infra.[144]  Therefore, if necessary or desirable, counsel can ask the probation violation sentencing court to alter an aspect of the original sentence, and the second sentence will be the sentence that governs the immigration consequences of the case. 

[144] See 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); Matter of CP, supra. This is also the case in some criminal contexts.  United States v. Robinson, 967 F.2d 287, 293 (9th Cir. 1992) (where a defendant is convicted of an alternative “felony-misdemeanor” or “wobbler,” the alternative sentence ultimately executed is the one to be used in guidelines calculations).