Criminal Defense of Immigrants
§ 10.62 XI. Immigration Consequences of Sentence
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There are a number of ways in which a criminal sentence can have profound immigration consequences:
(1) Length. The length of the sentence ordered by the court can trigger immigration consequences, see § 10.65, infra;
(2) Actual Time Served. The actual time spent in custody for one or more convictions can trigger immigration consequences, see § 10.73, infra;
(3) Maximum Sentence. The maximum possible sentence that could be imposed for the offense of conviction can trigger immigration consequences, see § 10.76, infra;
(4) Probation or Parole. The fact that the client is currently on probation or parole can trigger immigration consequences, see § 10.81, infra;
(5) Restitution Ordered. The restitution ordered might be considered equivalent to the loss to the victim(s), and the conviction might therefore be considered an aggravated felony fraud or tax evasion offense, see § 10.82, infra;
(6) Level of Offense. The felony or misdemeanor level of the offense of conviction can trigger immigration consequences, see § 10.86, infra;
(7) Sentence as Part of Record of Conviction. The sentencing judgment, which forms part of the “record of conviction,” can lead to adverse immigration consequences. See § 10.57(B), supra.
If no sentence has been imposed, no conviction exists for immigration purposes. See § 7.20, supra.
This discussion will cover the specific immigration effects of these aspects of sentence, so counsel can determine when it is important to alter one or more of these characteristics of a criminal sentence, so the client can obtain the corresponding immigration benefits.
The immigration statutes define a number of terms relating to the immigration consequences of a sentence in a criminal case. The most important concept is the sentence imposed, which means the sentence to imprisonment ordered by the court in a criminal case. See § 10.63, infra.
The length of a sentence also offers a gauge of the seriousness of the offense, which is taken into account in many contexts in which discretionary immigration decisions are made, even where no absolute bar to relief is encountered. Vacating or reducing the length of a sentence may thus be effective in reducing the negative impact of the conviction even if the conviction or sentence does not create a bar to relief or ground of removal.