Vacating the judgment will also eliminate the effect of any sentence or imprisonment resulting from the conviction.  See N. Tooby & J. Rollin, Crimes of Moral Turpitude § 10.4 (2008).  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.[9]  The immigration authorities are bound by the new sentence, even if the original sentence was not vacated for legal invalidity, but was altered in the discretion of the court, or even to eliminate immigration consequences.[10]

 

A state court order vacating or modifying a sentence, like an order vacating a conviction, cannot be collaterally attacked by the immigration authorities in immigration court.[11]  The Ninth Circuit has held that it is the final sentence that governs for immigration purposes.[12]  The same holds true for federal sentencing purposes.[13]

[9]Matter of Martin, 18 I. & N. Dec. 226 (BIA 1982) (correction of illegal sentence); Matter of H, 9 I. & N. 380 (BIA 1961) (new trial and sentence); Matter of J, 6 I. & N. Dec. 562 (AG 1956) (commutation); Matter of Song, 23 I. & N. Dec. 173 (BIA 2001) (finding that the new definition of “conviction” and the decision of Matter of Roldan, do not alter the fact 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 latest sentence controls for immigration purposes); United States v. Hovsepian, 307 F.3d 922 (9th Cir. 2002) (grounds for Federal Rule of Criminal Procedure Rule 35 motion to vacate sentence), vacated on grant of rehearing en banc, 326 F.3d 1041 (9th Cir. Apr. 7, 2003).

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

[11] Renteria-Gonzalez v. INS, 322 F.3d 804, 811 n.5 (5th Cir. Feb. 27, 2003) (amending opinion on denial of rehearing) (“[T]he INS cannot collaterally attack the Order To Vacate, even for want of jurisdiction, because it did not directly appeal that order in 1992 . . . .”), citing Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 377, 60 S.Ct. 317 (1940) (holding that a “decree sustaining [subject matter] jurisdiction against attack, while open to direct review, is res judicata in a collateral action”); Royal Ins. Co. of Am. v. Quinn-L Capital Corp., 960 F.2d 1286, 1293 (5th Cir. 1992) (“If the parties against whom judgment was rendered did not appeal, the judgment becomes final and the court’s subject matter jurisdiction is insulated from collateral attack.”).

[12] Garcia-Lopez v. Ashcroft, 334 F.3d 840 (9th Cir. June 26, 2003) (California discretionary court order reducing a conviction of violating Penal Code § 487.2, grand theft from the person, from a felony with a three-year maximum to a misdemeanor with a maximum no greater than one year, was binding upon the immigration courts for purposes of qualifying the offense under the petty offense exception to inadmissibility for a crime of moral turpitude, INA § 212(a)(2)(A)(ii)(II), 8 U.S.C. § 1182(a)(2)(A)(ii)(II), so the noncitizen was eligible for suspension of deportation).

[13] Mateo v. United States, 276 F.Supp.2d 186 (D. Mass. Aug. 12, 2003) (a state court nunc pro tunc order terminating state probation as of a date prior to commission of federal offenses, granted after federal sentencing, requires that petitioner’s 28 U.S.C. § 2255 petition be allowed and the petitioner’s sentence be recalculated).

Ninth Circuit

REDUCTION OF FELONY TO MISDEMEANOR " REDUCTION INEFFECTIVE TO DEFEAT 16-LEVEL SENTENCE ENHANCEMENT FOR ILLEGAL REENTRY SINCE RELEVANT TIME FOR DETERMINATION OF LEVEL OF OFFENSE WAS THE TIME OF DEPORTATION, FOR PURPOSES OF ILLEGAL REENTRY SENTENCE ENHANCEMENT
United States v. Salazar-Mojica, ___ F.3d ___, 2011 WL 651923 (9th Cir. Feb. 24, 2011)(reduction of felony to misdemeanor was ineffective to defeat consideration of conviction as aggravated felony crime of violence, under 18 U.S.C. 16(b), for purposes of imposition of 16-level sentence enhancement for illegal reentry, since relevant time for that purpose was at the time of the deportation); see United States v. Garcia-Lopez, 375 F.3d 586, 588 (7th Cir.2004) ([T]he appropriate inquiry is whether the defendant had been convicted of a crime of violence at the time of deportation. Nothing in the guideline suggests that the analysis should consider whether the conviction has been vacated subsequent to the deportation but prior to the sentencing for the reentry offense.); United States v. Luna-Diaz, 222 F.3d 1, 4 (1st Cir.2000) (noting that relevant time period is the time of deportation); United States v. Campbell, 167 F.3d 94, 98 (2d Cir.1999) ([C]onvictions vacated for reasons unrelated to guilt or flaws in the proceedings ... are not to be disregarded.); United States v. Cisneros-Cabrera, 110 F.3d 746, 748 (10th Cir.1997) (noting that whether the conviction is valid at time of sentencing is irrelevant).

REDUCTION OF FELONY TO MISDEMEANOR " REDUCTION INEFFECTIVE TO DEFEAT 16-LEVEL SENTENCE ENHANCEMENT FOR ILLEGAL REENTRY SINCE RELEVANT TIME FOR DETERMINATION OF LEVEL OF OFFENSE WAS THE TIME OF DEPORTATION, FOR PURPOSES OF ILLEGAL REENTRY SENTENCE ENHANCEMENT
United States v. Salazar-Mojica, 634 F.3d 1070, 2011 WL 651923 (9th Cir. Feb. 24, 2011)(reduction of felony to misdemeanor was ineffective to defeat consideration of conviction as aggravated felony crime of violence, under 18 U.S.C. 16(b), for purposes of imposition of 16-level sentence enhancement for illegal reentry, since relevant time for that purpose was at the time of the deportation); see United States v. Garcia-Lopez, 375 F.3d 586, 588 (7th Cir.2004) ([T]he appropriate inquiry is whether the defendant had been convicted of a crime of violence at the time of deportation. Nothing in the guideline suggests that the analysis should consider whether the conviction has been vacated subsequent to the deportation but prior to the sentencing for the reentry offense.); United States v. Luna-Diaz, 222 F.3d 1, 4 (1st Cir.2000) (noting that relevant time period is the time of deportation); United States v. Campbell, 167 F.3d 94, 98 (2d Cir.1999) ([C]onvictions vacated for reasons unrelated to guilt or flaws in the proceedings ... are not to be disregarded.); United States v. Cisneros-Cabrera, 110 F.3d 746, 748 (10th Cir.1997) (noting that whether the conviction is valid at time of sentencing is irrelevant).