Safe Havens

Any sentence enhancements to be included as part of the disposition must also be identified, and their effect on sentence computed.  If the sentence enhancement is considered to be part of the nature and elements of the conviction, it can alter the deportation consequences.  The general rule, however, is that a sentence enhancement is not considered to form part of the elements of the offense of conviction, and the facts established by the sentence enhancement therefore cannot be considered in determining whether the minimum conduct established by the conviction falls within a ground of deportation.  For example, a conviction of a non-firearms offense with a firearms enhancement does not trigger deportation as a firearms conviction.[154]

            Similarly, a sentence imposed on account of a sentence enhancement, rather than for the offense of conviction itself, does not count as part of the sentence imposed for purposes of determining the deportability of a conviction.  See § 5.57(B), supra.

[154] Matter of Rodriguez-Cortes, 20 I. & N. Dec. 587 (BIA Oct. 19, 1992) (conviction of five counts of attempted murder in the second degree, where sentence under one count was enhanced pursuant to section 12022(a) of the California Penal Code because a codefendant was armed with a firearm in the attempted commission of the felony, is not a conviction of a firearm offense under California law and is not deportable under INA § 241(a)(2)(C), 8 U.S.C. § 1251(a)(2)(C) (Supp. III 1991), as an alien convicted at any time after entry of a firearm violation, and respondent is eligible to apply for a waiver of inadmissibility under section 212(c) of the Act, INA § 212(c), 8 U.S.C. § 1182(c) (Supp. III 1991).