The BIA has long held that it is the most recent sentence that governs for immigration purposes, regardless of the reason why an original sentence was modified.[110]  After the 1996 legislation, the BIA reaffirmed the same rule.[111]

 

The BIA’s decision in Pickering[112] did not modify Matter of Song, in which the Board of Immigration Appeals held that a noncitizen was not deportable under the aggravated felony ground where the state court reduced his sentence for a theft conviction from one year to 360 days.  In Song, the BIA expressly differentiated between rehabilitative schemes that deal with the existence of a conviction and sentencing provisions that alter a sentence.  Moreover, the Ninth Circuit has recently reaffirmed the rule of Song, even after Pickering was decided.[113] 

[110] 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 (AG 1956) (commutation).

[111] Matter of Song, 23 I. & N. Dec. 173 (BIA 2001) (new definition of “conviction” and Matter of Roldan, 22 I. & N. Dec. 512 (BIA 1999), removal orders reversed sub nom. Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), do not alter the rule that vacating a sentence nunc pro tunc and imposing a revised sentence of less than 364 days will prevent the conviction from being considered an aggravated felony because the latest sentence controls for immigration purposes. 

[112] Matter of Pickering, 23 I. & N. Dec. 621, 625 (BIA June 11, 2003).  See also Griffiths v. INS, 243 F.3d 45 (1st Cir. 2001).  See § 11.4, supra.

[113] Garcia-Lopez v. Ashcroft, 334 F.3d 840 (9th Cir. June 26, 2003) (government must honor discretionary order reducing felony to misdemeanor); accord, Bayudan v. Ashcroft, 298 F.3d 799 (9th Cir. 2002) (setting aside court of appeals order dismissing petition for review for lack of jurisdiction, after criminal court reduced aggravated felony sentence from 365 to 364 days).

BIA

POST CON RELIEF " SENTENCE " COMMUTATION OF SENTENCE " COMMUTATION OF SENTENCE REPLACES THE ORIGINAL SENTENCE, BUT DOES NOT ELIMINATE THE CONVICTION
Matter of J, 6 I&N Dec. 562, 569 (BIA 1955) (commutation by the President of the United States or the Governors of States ha[s] exactly the same legal effect as though the commuted sentence had been imposed by the court in the first instance and . . . after commutation, the commuted sentence is the only one in existence.).

Ninth Circuit

SENTENCE - FELONY - CALIFORNIA CONVICTION OF FELONY-MISDEMEANOR WITH PROBATION CONSIDERED FELONY UNLESS REDUCED
United States v. Diaz-Argueta, 564 F.3d 1047 (9th Cir. Apr. 24, 2009) ("In the parlance of California law enforcement, a violation of the statute is a "wobbler" that may be punished either as a felony or as a misdemeanor. As the United States Supreme Court explains, 'Under California law, a wobbler is presumptively a felony and remains a felony except when the discretion is actually exercised to make the crime a misdemeanor.'"; California conviction of felony-misdemeanor, under Penal Code 245(a)(2), with imposition of sentence suspended and probation, remains a felony until judgment), quoting Ewing v. California, 538 U.S. 11, 16 (2003); citing Garcia-Lopez v. Ashcroft, 334 F.3d 840, 844-45 (9th Cir.2003); United States v. Qualls, 172 F.3d 1136, 1137-38 (9th Cir.1999); United States v. Robinson, 967 F.2d 287, 292-93 (9th Cir.1992) (no evidence that presumption that conviction is a felony has been overcome). See also, People v. Esparza, 61 Cal.Rptr. 167, 169 (1967).