Criminal Defense of Immigrants


§ 11.9 IV. Effective Orders Modifying Sentence

Skip to § 11.

For more text, click "Next Page>"

Vacating or reducing criminal sentences is one of the most important areas of post-conviction relief for immigrants, since it is frequently possible to arrange a modest change in the judgment, and thereby confer tremendous immigration benefits upon the client.  Convincing immigration and federal courts that the altered sentence is the only sentence from which immigration consequences can flow is also easier than is the case with vacated convictions.


                This section will discuss the basic rules immigration authorities use in determining whether a criminal court order modifying or vacating a sentence will be given effect in immigration court to alter the immigration effects of the sentence.  The basic rule is that the most recent sentence governs, and a former sentence will be ignored, in assessing the immigration effects of the conviction.  See § 11.10, infra. The 1996 statutory definition of “conviction” did not alter this result.  See § 11.11, infra.  An order reducing a sentence will therefore eliminate the former sentence for immigration purposes.  See § 11.12, infra.  An order reducing the level of the offense from a felony to a misdemeanor, see § 11.13, infra, or from a misdemeanor to an infraction, see § 11.16, infra, will also be effective in altering the maximum sentence for the offense, and the actual sentence imposed in cases in which the former sentence imposed exceeded the new maximum possible sentence, as well as the effects of the conviction where they depend upon the level of the offense as a felony or misdemeanor.  See § 11.14, infra.


                For a comprehensive discussion of the many ways in which a sentence can trigger or affect adverse immigration consequences, see Chapter 10, supra.




Eleventh Circuit

Hernandez v. U.S. Atty Gen., __ F.3d __, 2008 WL 160265 (11th Cir. Jan. 18, 2008) (twelve month suspended sentence, and one year probation, is a sentence imposed of one year, even if probation is later revoked and the defendant required to serve 22 days in jail).