It is often easier to obtain a sentence-reduction order than to vacate the conviction entirely.  Vacating or modifying a sentence is effective for immigration purposes.  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 recognized as valid for purposes of the immigration law without regard to the trial court’s reasons for effecting the modification or reduction.[67] 

 

            Vacating the judgment will also eliminate the effect of any sentence or imprisonment resulting from the conviction.  An extraordinary writ may be brought simply for purposes of vacating the original sentence, and obtaining a fresh sentencing hearing. [68]  A new sentence imposed by the judge will be the one considered by the immigration authorities, even if the defendant has already completed serving the original sentence.[69] 

Pickering interpreted INA § 101(a)(48)(A), the statutory definition of conviction.  The question of what constitutes a sentence, however, is determined under completely different statutes.[70]  Pickering confronted an order vacating a conviction, not an order reducing a sentence.  It therefore did not alter the law with respect to sentences.[71]

 

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.[72]  After the 1996 legislation, the BIA reaffirmed the same rule. [73]  Pickering did not even mention, much less overrule, Matter of Song.  Moreover, the Ninth Circuit has reaffirmed this rule, even after Pickering was decided.[74]  The BIA has made it clear this analysis is correct.[75]  Therefore, the most recent sentence determines the immigration consequences of sentence.

[67] 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), vacated by Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006).

[68]    People v. Barocio (1989) 216 Cal.App.3d 99, 264 Cal.Rptr. 573.

[69]  Matter of Cota-Vargas, 23 I. & N. Dec. 849 (BIA 2005)(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 recognized as valid for purposes of the immigration law without regard to the trial court's reasons for effecting the modification or reduction), clarifying Matter of Song, 23 I. & N. Dec. 173 (BIA 2001), distinguishing Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), reversed on other grounds in Pickering v. Gonzales, 465 F.3d 263 (6th Cir. Oct. 4, 2006).  See N. Tooby, Post-Conviction Relief For Immigrants § § 7.50-7.54 (2004); N. Tooby & J. Rollin, Safe Havens: How To Identify And Construct Non-Deportable Convictions § 4.29 (2005); 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).  See also Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1132 (9th Cir. Oct. 26, 2006) (en banc) (9th Cir. Nov. 15, 2006) (Arizona court order imposing a twelve-month sentence, for Arizona misdemeanor conviction of "theft by control of property with a value of $250 or more," in violation of A.R.S. § § 1301802(A)(1), (C), arguably would not constitute a one-year sentence imposed for removal purposes since the state at the time of sentence designated the conviction a misdemeanor, and under Arizona law the maximum term of imprisonment for a misdemeanor was then six months, see A.R.S. § 13-707, rendering the twelve-month sentence illegal on its face, requiring remand to the BIA to consider the issue in the first instance).

[70]  E.g., INA § 101(a)(48)(B); § 101(a)(43)(F), et al. [“sentence imposed” requirement for various aggravated felonies].

[71]  See R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S.Ct. 2538, 2545, n.5, 120 L.Ed.2d 305 (1992) ["It is of course contrary to all traditions of our jurisprudence to consider the law on [a] point conclusively resolved by broad language in cases where the issue was not presented or even envisioned"]; United States v. Vroman, 975 F.2d 669, 672 (9th Cir. 1992) (precedent not controlling on issue not presented to prior panel), cert. denied, 507 U.S. 996, 113 S.Ct. 1611, 123 L.Ed.2d 172 (1993).

[72]  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).

[73]  Matter of Song, 23 I. & N. Dec. 173 (BIA 2001) (new definition of “conviction” and Matter of Roldan-Santoyo, 22 I. & N. Dec. 512 (BIA 1999), removal orders reversed sub nom. Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), did 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 final sentence controls for immigration purposes).

[74]  Garcia-Lopez v. Ashcroft, 334 F.3d 840 (9th Cir. June 26, 2003)(government must honor discretionary order reducing felony to misdemeanor).

[75]  Matter of Cota-Vargas, 23 I. & N. Dec. 849 (BIA 2005).

Ninth Circuit

POST CON RELIEF " FEDERAL " MOTION TO REDUCE SENTENCE " REDUCTION OF SENTENCE BELOW GUIDELINES RANGE IMPROPER
United States v. Davis, 739 F.3d 1222 (9th Cir. Jan. 14, 2014) (affirming district court's denial of defendant's motion to reduce sentence, because an amended policy statement, USSG Manual 1B1.10(b), which generally prohibits a court from reducing a sentence to a term that is less than the minimum of the amended guidelines range, does not exceed the Sentencing Commission's authority and does not violate the separation of powers doctrine).

Other

CAL POST CON " RESENTENCE AFTER VACATUR OF SENTENCE " DEFENDANT NEED NOT BE PRESENT IF PROPER NOTARIZED WAIVER FILED
California Penal Code 1193 (Judgment upon persons convicted of commission of crime shall be pronounced as follows: (a) If the conviction is for a felony, the defendant shall be personally present when judgment is pronounced against him or her, unless the defendant, in open court and on the record, or in a notarized writing, requests that judgment be pronounced against him or her in his or her absence, and that he or she be represented by an attorney when judgment is pronounced, and the court approves his or her absence during the pronouncement of judgment, or unless, after the exercise of reasonable diligence to procure the presence of the defendant, the court shall find that it will be in the interest of justice that judgment be pronounced in his or her absence; . . . .) (emphasis added). Thanks to Michael K. Mehr.