Criminal Defense of Immigrants


§ 10.54 X. Effect of Sentence on Nature of Offense

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The imposition of sentence in a criminal case can affect the nature of the offense for purposes of determining its immigration consequences.  The sentence itself is considered to be part of the record of conviction for this purpose.  See § 10.55, infra.  A sentence enhancement, however, is generally not considered to be part of the record of conviction for this purpose, and therefore does not alter the nature of the offense of conviction for immigration purposes.  See § 10.56(B), infra.  It can be difficult, however, to determine whether a charge constitutes a sentence enhancement or an element of the offense, since this question arises in a number of purely criminal, as well as immigration contexts.  See § § 10.57-10.60, infra.  If sentence has not yet been imposed, there is no conviction for immigration purposes.  Direct appeal from sentence therefore renders the conviction itself nonfinal for immigration purposes, so removal proceedings cannot yet be based upon it until the direct appeal of right has been waived or concluded.  See § 10.61, infra.