(D)  Waiving Credits and Vacating Original Sentence.  One way to avoid a total original plus probation violation sentence triggering adverse immigration consequences is for the defendant to waive credit for time previously served, ask the court to vacate the original sentence, and impose a smaller probation violation sentence as a replacement for the original sentence that has now been vacated.  The court’s action in vacating the original sentence eliminates it from consideration in determining the immigration effects of the final sentence.  See § 11.10, infra.  Then it is only the replacement probation violation sentence that remains for immigration purposes.  Waiving past credits, vacating the original custody order, and receiving a second sentence too short to trigger adverse immigration consequences gives the defendant a strong argument that the court never ordered service of one year or more (for example) as a result of this conviction, since the new sentence (which is the sentence that counts for immigration purposes) is only three months. 

 

Eleventh Circuit

AGGRAVATED FELONY - SENTENCE.JUDICIAL REVIEW - RES JUDICATA
Singh v. US Attorney Gen., __ F.3d __ (11th Cir. Dec. 31, 2008) (respondent was initially convicted of robbery and sentenced to less than 365 days, he was charged with deportability based on two crimes of moral turpitude, but was granted cancellation of removal, respondent then violated probation and was sentenced to 6 years imprisonment, the DHS brought new proceedings charging the same robbery conviction was an aggravated felon; this was not barred by res judicata, because the probation violation made the offense an aggravated felony, and cancellation of removal only works to avoid being removed on the basis of the current charges, but not any subsequent proceeding).