By Attorneys Robert L. Reeves and Elsie Hui Arias

As we have addressed previously, the immigration consequences to criminal convictions can be harsh and complex, ranging from delays to naturalizing as a U.S. citizen to triggering removal (deportation) proceedings. In spite of the current political climate, an alien who has been convicted of a crime that affects their immigration status in the United States still has hope in mitigating the immigration ramifications of their conviction. The Board of Immigration Appeals (BIA) recently held in a published decision that reductions in criminal sentences nunc pro tunc should be recognized for immigration purposes. This is an important legal ruling that can help immigrants with certain criminal convictions obtain immigration benefits or avoid deportation.

In In re Cota, the BIA held that a trial court’s decision to modify or reduce an alien’s criminal sentence nunc pro tunc is entitled to full faith and credit, and that the modified sentence is valid for immigration purposes without regard to the trial court’s reasons for granting the reduction. In In re Cota, the respondent was a lawful permanent who was convicted of receiving stolen property and sentenced to 365 days of probationary detention in county jail.

On the basis of this conviction, the Department of Homeland Security (DHS) initiated removal proceedings against Mr. Cota for having committed an “aggravated felony,” which includes a “theft offense (including receipt of stolen property)…for which the term of imprisonment [is] at least one year.” Because Mr. Cota was convicted of an aggravated felony, he was severely restricted in his ability to fight his deportation proceedings. Through his attorney, Mr. Cota filed a motion with the criminal court and requested reduction of the 365-day jail sentence so that he could seek a waiver of deportation; he did not contend that the sentence or criminal conviction itself was substantively unlawful or procedurally defective. The criminal court granted the motion and reduced the sentence to 240 days nunc pro tunc. The immigration judge refused to recognize the modified sentence because there was no due process issue in the underlying criminal proceedings, and ordered the respondent deported.

Mr. Cota timely appealed the judge’s decision to the BIA. In reviewing the appeal, the BIA analyzed its prior decisions relating to post-conviction relief in Matter of Pickering and Matter of Song. The government urged the BIA to follow Matter of Pickering, which held that a court’s order to vacate a criminal sentence solely for rehabilitation or immigration hardship could not be recognized for immigration purposes. Studying the statutory language and construing Congressional intent, the BIA distinguished Matter of Pickering and followed Matter of Song, stating that Congress did not specifically address sentence modifications in the definition of “term of imprisonment” for immigration purposes. Because Cota’s sentence was reduced to less than one year (240 days), the BIA held that the offense was no longer classifiable as an “aggravated felony” and terminated Cota’s removal proceedings.
The immigration consequences to a criminal conviction may be very complex and directly affect an immigrant’s ability to stay in the United States. Non-U.S. citizens with criminal convictions placed in deportation proceedings or seeking immigration benefits should seek representation by knowledgeable and experienced immigration attorneys.