Criminal Defense of Immigrants

(E)  Effect of Post-Conviction Relief.  In questionable decisions, the First and Tenth Circuits have held that the relevant time at which to determine whether the defendant was convicted of an aggravated felony for illegal re-entry sentencing purposes is the time of removal.  Therefore, a conviction can serve as an “aggravated felony” to trigger an enhanced sentence under INA § 276(b)(2), even if that conviction was vacated after the noncitizen was ordered removed, as long as the removal occurred after the conviction, and while the conviction was in existence.[825]  This is improper because the unconstitutional conviction should never have existed in the first place, and should not be allowed to be the basis of a penalty in criminal or immigration court.

[825] United States v. Johnstone, 251 F.3d 281 (1st Cir. 2001), citing United States v. Luna-Diaz, 222 F.3d 1, 3 (1st Cir. 2000); see also United States v. Cisneros-Cabrera, 110 F.3d 746 (10th Cir. 1997).