Criminal Defense of Immigrants
§ 11.11 B. New Definition of "Conviction"
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Vacating a sentence nunc pro tunc and imposing a revised sentence of less than one year will prevent many convictions from being considered an aggravated felony. A discretionary modification of sentence is effective because the BIA may not “look behind” a state court order to determine whether the court acted in conformity with state law, but must instead afford “full faith and credit” to the judgment, and because the BIA has repeatedly ruled that it is the final sentence that counts for immigration purposes.
In Matter of Cota-Vargas, the BIA held that a 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 valid for immigration purposes without regard to the trial court’s reasons for effecting the modification or reduction.
Under the law of many states, if a defendant is still on probation, the sentencing court retains discretion to alter the conditions of probation, including any condition that imposes a custodial sentence. If the court changes the sentence from 365 days to 360 days in custody, it is the latter sentence that governs for immigration purposes, and the conviction would therefore no longer be considered an aggravated felony conviction in deportation proceedings, where the category requires a sentence imposed of one year or more to constitute an aggravated felony. See § 19.10, infra.
The Seventh Circuit held the INS had not proved by clear and convincing evidence that a noncitizen was deportable on account of an initial felony conviction of possession of more than 30 grams of marijuana, after the state court had altered a sentence to one that would be proper only for a conviction of possession of less than 30 grams. Sandoval had filed a motion attacking that conviction, on grounds of ineffective assistance of counsel, and the state court had thereafter modified his sentence to a sentence that was proper only for a conviction of possession of 30 grams of marijuana or less. The court distinguished Matter of Roldan on the grounds that here, the state court judge had not used a state rehabilitative statute but had rather used a statute authorizing him to vacate a conviction or sentence on grounds of a constitutional violation.
In order to make sure the immigration court honors the order setting aside the original sentence, it would be wise if possible to make sure a ground of legal invalidity of the first sentence was raised in the papers attacking it, and that the court invalidated the initial sentence on a ground of legal invalidity. See § 11.4, supra.
 Matter of Song, 23 I. & N. Dec. 173 (BIA 2001).
 Matter of Rodriguez-Ruiz, 22 I. & N. Dec. 1378 (BIA 2000). The BIA rejected the Service’s argument that a conviction vacated for purposes of avoiding removal, rather than based on a ground of legal invalidity, remains a conviction under the INA, and held that a vacated conviction will not constitute a conviction for immigration purposes so long as it is not vacated under a state rehabilitative statute. In an unpublished decision, the BIA held that a state court order modifying a one-year sentence nunc pro tunc to reflect a sentence of 220 days’ confinement was effective to eliminate the previously-imposed one-year sentence as a basis to find a conviction to be an aggravated felony. Matter of Barragan, A14-262-818 (BIA June 16, 1999), citing Matter of Martin, 18 I. & N. Dec. 226 (BIA 1982) (deportation proceedings terminated because noncitizen’s sentence had been modified to less than one year).
 Matter of Martin, 18 I. & N. Dec. 226 (BIA 1982) (correction of illegal sentence); Matter of H, 9 I. & N. Dec. 380 (BIA 1961) (new trial and sentence); Matter of J, 6 I. & N. Dec. 562 (A.G. 1956) (commutation). See N. Tooby, Criminal Defense of Immigrants 1-74 ff. (2d ed. 2003), and N. Tooby, California Post-Conviction Relief for Immigrants (2002), Chapter 8, for more complete discussions of the immigration consequences of sentences and confinement.
 Matter of Cota-Vargas, 23 I. & N. Dec. 849 (BIA 2005), clarifying Matter of Song, 23 I. & N. Dec. 173 (BIA 2001), distinguishing Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003).
 See United States v. Landeros-Arreola, 260 F.3d 407 (5th Cir. July 27, 2001) (reduction of sentence imposed for Colorado menacing conviction, after successful completion of Colorado’s Regimented Inmate Training Program, from four years imprisonment to probation, was not mere suspension of execution of sentence, but effectively reduced custody term below one year, so that state menacing conviction did not constitute crime of violence “aggravated felony” conviction, with one year-sentence imposed, under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), and no longer was sufficient to trigger a sentence enhancement of an illegal re-entry sentence).
 Sandoval v. INS, 240 F.3d 577 (7th Cir. 2001).
 Matter of Roldan, 22 I. & N. Dec. 512 (BIA 1999), removal orders vacated sub nom. Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000).
CONVICTION " STATUTORY DEFINITION " FINE
Vivieros v. Holder, ___ F.3d ___ (1st Cir. Jun. 25, 2012) (Massachusetts conviction of shoplifting, under Mass. Gen. Laws ch. 266, 30A, constituted a conviction for immigration purposes, under INA 101(a)(48)(A), 8 U.S.C. (a)(48)(A), where the defendant pleaded guilty and received a fine of $250, which was later vacated, so the ultimate disposition was a guilty finding with no fines or costs, because a formal judgment of guilt had been entered and the fine was not vacated on a ground of legal invalidity). Note: This decision is mistaken. Its reasoning is as follows: The petitioner endeavors to alter this reality by insisting that the subsequent vacation of the $250 fine transmogrifies his case into one in which no sentence was ever imposed. This attempt to rewrite history cannot survive scrutiny. We previously have held that when an alien's conviction is vacated for reasons other than procedural or substantive error, he remains convicted for immigration purposes. See, e.g., Rumierz v. Gonzales, 456 F.3d 31, 39"40 (1st Cir.2006); Herrera"Inirio v. INS, 208 F.3d 299, 305 (1st Cir.2000). Other courts uniformly have hewed to this rationale. See, e.g., Dung Phan v. Holder, 667 F.3d 448, 452"53 (4th Cir.2012); Poblete Mendoza v. Holder, 606 F.3d 1137, 1141 (9th Cir.2010); Saleh v. Gonzales, 495 F.3d 17, 24"25 (2d Cir.2007); Cruz v. Att'y Gen. of U.S., 452 F.3d 240, 245 (3d Cir .2006). It necessarily follows that the vacation of a fine for reasons unrelated to procedural or substantive error does not dissipate the underlying conviction for purposes of section 1227(a)(2)(A)(ii). The petitioner's case falls within this taxonomy. There is no indication in the record that his fine for shoplifting was vacated on account of either procedural or substantive error. To the contrary, the state court docket reflects that roughly five months after the fine was imposed, it was waived on recommendation of [the] Probation Dept. When the petitioner's counsel sought clarification regarding the final disposition, the state court wrote that the docket should reflect [a] guilty finding with no fines or costs. The implication of these docket entries is pellucid: the state court, exercising clemency, waived the petitioner's fine at the behest of his probation officer. There is not the slightest hint that the waiver came about because of some legal infirmity in the shoplifting proceedings. Accordingly, the shoplifting conviction remains a formal judgment of guilt, 8 U.S.C. 1101(a)(48)(A), and endures for immigration law purposes. This is mistaken because it confuses the requirements for an effective vacatur of a conviction (a ground of legal invalidity), with an alteration in the sentence, which is effective for immigration purposes regardless of the reason for the sentence change. Compare Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), with Matter of Cota-Vargas, 23 I. & N. Dec. 849 (BIA 2005). The consistent rule, until now, has been that it is the final state sentence that is binding on the immigration authorities, regardless of any reason given for a change in the sentence.