Where a defendant has previously received a sentence of 364 days in custody for an offense that would be an aggravated felony with a one-year sentence imposed, any additional custodial sentence imposed as a result of a probation violation would be added to the original sentence and would transform the conviction into an aggravated felony. Defense counsel at the probation violation plea bargaining and sentencing stages should: (1)  Ask the court to vacate the original probation condition imposing the custodial sentence of 364 days;

United States v. Gonzalez-Coronado, ___ F.3d ___, 2005 WL 1941631 (10th Cir. Aug. 15, 2005) (sentence directly to probation is not a sentence in excess of one year, for purposes of aggravated felony crime of violence; despite district court error in enhancing sentence based upon aggravated felony conviction, resentencing is not necessary where defendant would have received equivalent increase because offense is a felony).

The New York State Defenders Association's Immigrant Defense Project mentioned by Sophie Feal has call in hours on Tuesdays and Thursdays and will very kindly walk you through any New York crimmimm issues.  Defense lawyers and others (including immigrants themselves) seeking backup support or counseling on criminal/immigration law issues should contact the Project on Tuesdays and Thursdays from 1:30 p.m. to 4:30 p.m. at (212) 898-4132, or write to the Project at 2 Washington Street, 7 North, New York, NY 10004.

Uritsky v. Gonzales, __ F.3d __, 2005 WL 517526 (6th Cir. March 7, 2005) (sentence of probation and a designation of "youthful trainee" under Michigan's Holmes Youthful Trainee Act ("YTA"), Mich. Comp. Laws 762.11-16, constitutes a conviction for immigration purposes).

     The Ninth Circuit has established the rule that a sentence imposed pursuant to a recidivist sentence enhancement is not considered to constitute part of a sentence imposed, for determining whether a conviction qualifies as an aggravated felony for purposes of enhancing a sentence for illegal reentry after deportation. United States v. Corona-Sanchez, 29 F.3d 1201 (9th Cir. 2002) (en banc).

United States v. Villegas, __ F.3d __, 2005 WL 627963 (5th Cir. March 17, 2005) (case remanded for resentencing in light of United States v. Booker, 125 S.Ct. 738 (2005), to determine whether four level enhancement to 18 U.S.C. 922(g)(5) conviction sentence was proper upon court finding that firearm possession was in connection with use of fraudulent immigration documents).

Matter of Eslamizar, 23 I. & N. Dec. 684 (BIA Oct. 19, 2004) (en banc) (court procedures under Ore. Rev. Stat. 153.076, did not constitute a conviction for immigration purposes, since the proceedings do not allow a jury trial, right to court-appointed counsel, or proof beyond a reasonable doubt), overruling Matter of CR, 8 I. & N. Dec. 59 (BIA 1958) (police court adjudication of petty theft under a municipal ordinance, on a standard of preponderance of the evidence, constituted a conviction for immigration purposes).

Matter of J, 2 I. & N. Dec. 285 (BIA 1945) ("In deciding whether an alien has admitted the commission of a crime involving moral turpitude under sections 3 and 19 of the Immigration Act of 1917, the following rules are to be observed: (1) It must first be established that under the law where the act was alleged to have been committed that it is a crime. (2) An adequate definition of the crime, including all essential elements, must first be given to the alien.

Francis v. Gonzalez, __ F.3d __, 2006 WL 768549 (2d Cir. Mar. 27, 2006) (respondents admission before the IJ that he had been convicted of a controlled substances offense insufficient to show existence of conviction where the colloquy did not establish all the elements of the definition of "conviction" applied for immigration purposes).

Francis v. Gonzalez, __ F.3d __, 2006 WL 768549 (2d Cir. Mar. 27, 2006) (government failed to show noncitizen deportable for being inadmissible at entry or adjustment, under INA 237(a)(1)(A), on the basis that he admitted commission of a controlled substances offense, under current INA 212(a)(2)(A)(i)(II), since this ground of inadmissibility was not triggered by an admission of commission of the offense until IMMACT 1990, effective November 29, 1990, and noncitizen adjusted status prior to that date).