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In Re Oscar COTA-Vargas, Respondent

File A37 803 631 - San Diego

Decided November 18, 2005

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

A trial court’s decision to modify or reduce an alien’s 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. Matter of Song, 23 I&N Dec. 173 (BIA 2001), clarified; Matter of Pickering,

23 I&N Dec. 621 (BIA 2003), distinguished.

FOR RESPONDENT: James R. Patterson, Esquire, San Diego, California

FOR THE DEPARTMENT OF HOMELAND SECURITY: Michael P. Rummel, Assistant

Chief Counsel

BEFORE: Board Panel: COLE and FILPPU, Board Members. Dissenting Opinion:

PAULEY, Board Member.

COLE, Board Member:

The respondent appeals from an Immigration Judge’s March 19, 2004,

decision denying his motion to terminate the removal proceedings and ordering

him removed from the United States as an alien convicted of an aggravated

felony. The appeal will be sustained and the removal proceedings will be

terminated.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Mexico and a lawful permanent

resident of the United States. On August 8, 2001, he was convicted in the

Superior Court of San Diego County, California, of the offense of receiving

stolen property in violation of section 496(a) of the California Penal Code. In

an order dated December 20, 2001, he was sentenced to 3 years of formal

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probation and a 365-day term of probationary detention in county jail.1 On the

basis of this conviction, the Department of Homeland Security (the “DHS,”

formerly the Immigration and Naturalization Service), initiated removal

proceedings, charging the respondent with deportability under section

237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C.

§ 1227(a)(2)(A)(iii) (2000), as an alien convicted of an aggravated felony, to

wit, a “theft offense (including receipt of stolen property) . . . for which the term

of imprisonment [was] at least one year.” Section 101(a)(43)(G) of the Act,

8 U.S.C. § 1101(a)(43)(G) (2000).

In May 2003, the respondent filed a motion with the San Diego Superior

Court requesting reduction or elimination of the 365-day jail sentence that had

been imposed as a condition of his probation. In making this request, the

respondent made the following declaration through counsel:

This relief is sought so that Mr. Cota can seek a waiver of deportation from the

Immigration and Naturalization Service. Cota is a long-time lawful resident alien. . . .

[Mr. Cota’s immigration attorney] has advised defense counsel that Cota may be

eligible for a waiver of deportation if the stayed custody in this case is reduced to 364

days or less. For I.N.S. purposes, it apparently is irrelevant whether the imposed

custody is stayed or actually served. What is important is whether the term imposed

is less than 365 days.

The respondent did not, and does not now, allege that the original 365-day

sentence was substantively unlawful or procedurally defective.

On June 3, 2003, the Superior Court accommodated the respondent’s request

and, without comment, reduced his period of probationary detention from 365

days to 240 days, nunc pro tunc to December 20, 2001, the date of his original

sentencing. Based on this modification of his sentence, the respondent filed a

motion to terminate the removal proceedings, in which he argued, by reference

to our decision in Matter of Song, 23 I&N Dec. 173 (BIA 2001), that he was

not deportable as an alien convicted of an aggravated felony, because his receipt

of stolen property offense was no longer one “for which the term of

imprisonment [was] at least one year” within the meaning of

section 101(a)(43)(G) of the Act.

The Immigration Judge denied the motion, concluding that our subsequent

precedent in Matter of Pickering, 23 I&N Dec. 621 (BIA 2003), had materially

modified Matter of Song as it related to sentence modifications undertaken

solely to affect the immigration consequences of the underlying conviction.

1

This period of probationary detention was stayed, subject to the respondent’s completion

of 20 days of work in a Public Service Program.

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The respondent appeals, arguing that Matter of Pickering is inapposite in the

sentence modification context and that a modified criminal sentence must be

given effect in immigration proceedings, regardless of the reasons for the

modification.

II. ISSUE

The respondent’s appeal presents the question whether the California trial

court’s order reducing his sentence from 365 days to 240 days, nunc pro tunc,

precludes the underlying conviction for receipt of stolen property from

qualifying as an aggravated felony conviction, where the evidence reflects that

the sentence was reduced solely for the purpose of affecting the immigration

consequences of the conviction, and not to correct any substantive or procedural

defect in the original judgment.

III. ANALYSIS

In Matter of Pickering, supra, we held that a criminal conviction that was

vacated for reasons solely related to rehabilitation or immigration hardships

would continue to operate as a “conviction” within the meaning of

section 101(a)(48)(A) of the Act, 8 U.S.C. § 1101(a)(48)(A) (2000).

Section 101(a)(48)(A) provides as follows:

The term “conviction” means, with respect to an alien, a formal judgment of guilt of

the alien entered by a court or, if adjudication of guilt has been withheld, where —

(i) a judge or jury has found the alien guilty or the alien has entered a plea of

guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt,

and

(ii) the judge has ordered some form of punishment, penalty, or restraint on the

alien’s liberty to be imposed.

Although we acknowledged in Matter of Pickering, supra, at 622, that the

language of section 101(a)(48)(A) did not “directly address ‘quashing’ of

convictions,” that language did at least reflect a clear desire on the part of

Congress to extend the meaning of the term “conviction” to encompass many

judgments that would not otherwise be considered valid convictions under the

law of the rendering jurisdiction because of rehabilitative or other policy

considerations. In light of the language and legislative purpose of the

“conviction” definition and a series of decisions of the Federal courts of appeals

applying that definition in analogous circumstances, we concluded in Pickering

that “there is a significant distinction between convictions vacated on the basis

of a procedural or substantive defect in the underlying proceedings and those

vacated because of post-conviction events, such as rehabilitation or immigration

hardships.” Id. at 624.

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While the language and purpose of section 101(a)(48)(A) of the Act provided

support for the interpretive approach we adopted in Pickering as it related to the

existence of a “conviction,” the Immigration Judge’s application of the

Pickering rationale to sentence modifications has no discernible basis in the

language of the Act. Section 101(a)(48)(B) of the Act provides as follows:

Any reference to a term of imprisonment of a sentence with respect to an offense

is deemed to include the period of incarceration or confinement ordered by a court of

law regardless of any suspension of the imposition or execution of that imprisonment

or sentence in whole or in part.

This language plainly instructs us to disregard the term of imprisonment that

was actually imposed upon an alien in favor of the term of imprisonment that

was ordered, but not necessarily imposed, by the trial court. Matter of

Batista-Hernandez, 21 I&N Dec. 955 (BIA 1997); Matter of S-S-, 21 I&N

Dec. 900 (BIA 1997). However, we see nothing in the language or stated

purpose of section 101(a)(48)(B) that would authorize us to equate a sentence

that has been modified or vacated by a court ab initio with one that has merely

been suspended. Indeed, the importance of this distinction was implicitly

acknowledged by our precedent decision in Matter of Song, supra, which was

issued well after the promulgation of section 101(a)(48)(B) and which gave

effect to a sentence modification under circumstances similar to those

presented here. See also Garcia-Lopez v. Ashcroft, 334 F.3d 840, 846 (9th

Cir. 2003) (citing Matter of Song with approval).

The dissent advances a number of cogent policy reasons for refusing to

countenance certain sentencing modifications in the immigration context, but

we cannot advance policy goals that are not moored to the language of the Act.

If it is the will of Congress that modified sentences should be given no effect

for immigration purposes, Congress can amend the statute to so provide. But

we should not force section 101(a)(48)(B) of the Act to serve a purpose that

cannot be fairly reconciled with its language.

Accordingly, in the absence of a congressional directive to the contrary, we

will follow Matter of Song, supra, and give full and faith and credit to the

decision of California Superior Court modifying the respondent’s sentence,

nunc pro tunc, from 365 days to 240 days. Because the respondent does not

presently stand convicted of an offense for which the term of imprisonment was

at least 1 year, his offense is not an aggravated felony.2 Cf. Matter of

Batista-Hernandez, supra, at 963. No other charges of deportability are

2

In view of our finding that the respondent’s sentence was for less than a year, it is

unnecessary for us to reach the question whether the record meets the tests set out in

Penuliar v. Ashcroft, 395 F.3d 1037 (9th Cir. 2005), for determining whether this California

conviction has been shown to be for a “theft” offense.

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currently pending against the respondent. Therefore, the respondent’s appeal

will be sustained, and the removal proceedings will be terminated.

ORDER: The appeal is sustained.

FURTHER ORDER: The removal proceedings are terminated.

DISSENTING OPINION: Roger A. Pauley, Board Member

I respectfully dissent.

I. BACKGROUND

The respondent in this matter was lawfully convicted in California of the

offense of receipt of stolen property and was duly sentenced to a 365-day jail

term by the trial court. Less than 2 months after the initiation of these removal

proceedings, however, the respondent requested that the trial court modify his

sentence, nunc pro tunc, solely for the purpose of allowing him to escape the

immigration consequences of his conviction. The trial court granted the

respondent’s request without comment, and the Immigration Judge concluded,

with ample justification, that such State action, undertaken solely for the

purpose of undermining enforcement of the Federal immigration laws, cannot

be given effect in removal proceedings without compromising the integrity of

the Immigration and Nationality Act.

The majority has arrived at a different conclusion based on its seriously

misguided belief that the Immigration Judge’s decision was based on “policy

goals that are not moored to the language of the Act.” Matter of Cota, 23 I&N

Dec. 849, 852 (BIA 2005). On the contrary, I conclude that the Immigration

Judge’s decision was bottomed on—and compelled by—the Attorney General’s

responsibility, delegated to the Immigration Judges and the Board of

Immigration Appeals, to implement the Immigration and Nationality Act as

Congress intends.

II. ANALYSIS

In Matter of Pickering, 23 I&N Dec. 621 (BIA 2003), we dealt with a

situation in which a court vacated an alien’s controlled substances conviction

pursuant to a motion in which the alien requested the vacatur for reasons solely

related to the conviction’s adverse effect on his eligibility for relief from

removal. Citing several decisions of the Federal courts of appeals reaching like

conclusions, we held that a conviction vacated, not on the merits but solely to

achieve an immigration result, remained a “conviction” under

section 101(a)(48)(A) of the Immigration and Nationality Act, 8 U.S.C.

§ 1101(a)(48)(A) (2000), despite its vacatur. Underlying the Pickering

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decision is the recognition that immigration enforcement is an area of Federal

responsibility, in which Congress has sought to achieve consistency through the

enactment of uniform criteria for removal (and relief from removal) that often

necessitate an inquiry as to whether an alien has been convicted of a particular

type of offense. To permit the courts, whether State or Federal, to affect the

immigration consequences of a conviction by vacating it, where such action is

done purely and entirely for the purpose of avoiding those consequences, would

undermine the intent of Congress.

The Immigration Judge concluded that the rationale of Matter of Pickering

should apply to sentence modifications, as well as to vacated convictions. I

agree. Had the respondent’s motion sought the vacatur of his conviction rather

than a reduction of his sentence, and had the motion been granted, the case

would clearly be governed by Matter of Pickering, because the motion was

predicated only on immigration consequences. I see no justification for a

different result simply because the motion involved a request for sentence

reduction.

The majority makes much of the fact that Pickering related to the existence

of a “conviction,” as defined by section 101(a)(48)(A) of the Act, while the

present case relates to the term of a sentence under section 101(a)(48)(B),

thereby implying that our rationale in Pickering somehow flowed from language

that is present in the “conviction” definition but absent from the “term of

sentence” definition. That is an untenable interpretation ofMatter of Pickering.

Nothing in the language of section 101(a)(48)(A) addresses convictions that

have been vacated solely for immigration purposes, nor does the validity of

Pickering depend on the existence of the conviction definition, as the majority

here implies.3

Matter of Pickering, like the Immigration Judge’s decision in this case, was

grounded in the Attorney General’s duty to maintain the integrity of the Federal

immigration system against flagrant attempts by judges to undercut Congress’s

purpose by erasing or modifying an alien’s conviction solely to achieve an

immigration result. Indeed, I note that for like reasons, in the Federal system

and perhaps some State systems, it appears to be illegal to reduce a sentence for

the purpose of affecting immigration consequences. See United States v.

Maung, 320 F.3d 1305, 1309 (11th Cir. 2003) (citing United States v.

3

Pickering quoted the definition of a “conviction” but rightly observed that it did not

“directly address” the quashing of convictions. Matter of Pickering, supra, at 622. Our

opinion went on to rely on decisions of courts of appeals that likewise did not peg the result

to a particular provision of the Act but rather noted that giving effect to convictions vacated

sole ly to achieve an immigration result would thwart the intent of Congress. See, e.g.,

Renteria-Gonzalez v. INS, 322 F.3d 804, 812 (5th Cir. 2002) (“When a court vacates an

otherwise final and valid conviction on equitable grounds merely to avoid the immigration-law

consequences of the conviction, it usurps Congress’s plenary power. . . .”).

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Aleskerova, 300 F.3d 286 (2d Cir. 2002)); see also United States v.

Hernandez, 325 F.3d 811 (7th Cir. 2003).

Of course, Pickering does not depend for its validity on a finding that the

vacatur was unlawful. On the contrary, in Pickering itself, we assumed that the

alien’s conviction had been vacated properly for purposes of the law of the

rendering jurisdiction (and I would assume here, as well, that the respondent’s

sentence reduction was valid under California law), but we declined to recognize

the purported elimination of the conviction for immigration purposes, because

we found that Congress did not contemplate that courts should be able to

manipulate immigration consequences through the device of erasing a

conviction where the “erasure” was not done for a legal reason, but only to

affect the immigration results.

These same considerations logically apply to sentence modifications.4 In this

regard, the following observations in United States v. Maung, supra, are

pertinent:

Congress has made a deliberate policy judgment about the consequences a criminal

conviction should have upon an alien’s ability to remain in this country, and it has set

the scale accordingly. In setting the scale, Congress has used as measurements the

type of crime and the length of sentence imposed. Courts cannot reset the scale.

They cannot fudge the result of the measurement Congress has mandated through the

use of departures designed to reduce (or enlarge) a sentence for the sole purpose of

affecting its immigration consequences. . . .

The Second Circuit viewed things the same way we do, explaining in the

Aleskerova case that when a district court departs downward for the purpose of

taking a case out of the aggravated felony category, it “disrupt[s] the balance struck

by the legislative branch . . . .”

Id. at 1309 (quoting United States v. Aleskerova, supra, at 301) (citations

omitted).

4

I realize that, in imposing sentence initially, a court might rely only on immigration

consequences to refrain from imposing a particular term of imprisonment, and if the relevant

immigration threshold was not reached, we could not say that the alien had been sentenced

to the requisite term. But the same could be said of a court that acquitted or refused to

convict an alien solely due to the perception that the potential immigration consequences

were too severe. Thus, this potential ability of judges intentionally and irreversibly to affect

immigration consequences is not a reason for not applying the teachings of Pickering in the

sentencing milieu. We cannot prevent such untoward original outcomes; but the bare

possibility of their occurrence (which I do not identify as having been or as likely to become

a significant problem) is not a ground for discarding the teachings of Matter of Pickering

and for failing to recognize an original conviction or sentence that has a disqualifying or

adverse effect on an alien, when such has been vacated or amended solely to bar or

ameliorate the application of the immigration laws.

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For these reasons, I conclude that where a sentence is shown to have been

reduced solely for immigration purposes, such reduction should not be

recognized and the original sentence should remain in effect for immigration

purposes. While no individual provision of the Act instructs how we should

treat sentence modifications designed solely, as in this case, to ameliorate

immigration-law consequences upon an alien, the text, structure, and history of

the Act suggest that we should treat such modifications as unavailing.5

I believe there is implicit or inherent authority in an adjudicative agency

created to interpret a statute to disregard efforts intended solely to undermine

the legislative intent and thereby interfere with its very reason for being.

Moreover, if a specific delegation of authority to the Board is thought necessary

to effect this commonsense result, it is found in the regulations. Thus, 8 C.F.R.

§ 1003.1(d)(1) (2005) directs in no uncertain terms that the “Board shall

resolve the questions before it in a manner that is timely, impartial, and

consistent with the Act.” (Emphasis added.) It should go without saying that

construing the Act to give effect to a court’s order meant only to avoid an

immigration result otherwise dictated by the Act is not a resolution “consistent”

with the Act.

In concluding that sentence modifications should be treated differently from

outright vacaturs of convictions, the majority relies on Matter of Song, 23 I&N

Dec. 173 (BIA 2001), declaring that in that case we gave effect to a sentence

modification under circumstances similar to those presented here. In Matter

of Song, the alien was originally sentenced to 1 year in prison for a theft offense

but succeeded in getting his sentence reduced to 360 days while the Immigration

Judge’s decision was pending on appeal. We granted the respondent’s motion to

terminate proceedings, finding that he was no longer convicted of an aggravated

felony under section 101(a)(43)(G) of the Act (categorizing theft offenses as

aggravated felonies only if the sentence imposed is at least 1 year).

5

As for history, it is worth noting that Congress experimented for many years with the socalled judicial recommendation against deportation (“JRAD”) of former section 241(b) of

the Act, 8 U.S.C. § 1251(b) (1988), which allowed Federal and State courts, in imposing

sentence or within 30 days thereafter, to determine that an alien convicted of a crime or

crimes that rendered the alien deportable should nevertheless not be deported. Although

couched in the phraseology of a “recommendation,” the statutory “recommendation” was

binding. See Renteria-Gonzalez v. Ashcroft, supra, at 808 n.2. The JRAD statute was

abolished in 1990. See Immigration Act of 1990, Pub. L. No. 101-649, §§ 505, 602(b)(1),

104 Stat. 4978, 5050, 5081. Having determined 15 years ago to divest judges of their power,

at sentencing, to second-guess and overrule the provisions of the Act relating to the

removability of aliens convicted of crimes, it is logical to conclude that Congress would

likewise not deem it consistent with later and current versions of the Act to give effect to

individual judges’ tampering with previously imposed sentences solely to render an alien

immune from removal.

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The Board’s brief opinion stated only (insofar as pertinent here) that it found

our prior decision in Matter of Roldan, 22 I&N Dec. 512 (BIA 1999),

inapplicable because that case dealt with the definition of a “conviction” in

section 101(a)(48)(A) of the Act, and not, as in the case at hand, with the

definition of the phrase “term of imprisonment” in section 101(a)(48)(B). We

did not otherwise purport to deal with a claim that the sentence had been reduced

solely for immigration purposes. Nor does the cryptic reference to Matter of

Roldan, supra, imply otherwise, as that decision addressed the quite different

issue whether a conviction vacated under a state rehabilitative statute remained

a “conviction” for immigration purposes.6 In short, nothing in Matter of Song,

supra, indicates that the Board was confronted with (or resolved) the issue

presented here: whether a sentence reduction found to have been made solely

to alleviate the immigration consequences of the underlying conviction should

be recognized for immigration purposes.

Thus, in refusing to give effect to sentence modifications undertaken solely

to ameliorate the immigration consequences of a conviction, we would not

undermine the general rule in Matter of Song, supra, that sentence reductions

are ordinarily valid for immigration (as for other) purposes.7 As we emphasized

in Matter of Pickering, supra, the same is true for court actions vacating

convictions, which are generally effective for immigration purposes under

Matter of Rodriguez-Ruiz, 22 I&N Dec. 1378 (BIA 2000). See Matter of

Pickering, supra, at 624 (noting that “there is a significant distinction between

convictions vacated on the basis of a procedural or substantive defect in the

underlying proceedings and those vacated because of post-conviction events,

such as rehabilitation or immigration hardships”). I would hold only that the

limited exception provided in Pickering for court actions vacating convictions

undertaken for the sole purpose of affecting immigration results applies also

in the sphere of sentence modifications.

6

Indeed, it is not apparent how Matter of Roldan was even relevant to the issue before the

Board in Matter of Song, since reducing a sentence by a few days, even if done for other

than penologically sound reasons or to affect an immigration result, is not effected pursuant

to a rehabilitative program or statute and is not properly characterized as serving

rehabilitative ends.

7

There are, of course, many valid nonimmigration-related reasons for reducing a sentence,

such as to correct an illegal sentence, to recognize a defendant’s post-sentence assistance

to law enforcement or other meritorious behavior, or to harmonize a sentence with that

imposed on other similarly situated offenders, and nothing in this opinion is to be taken as

indicating my view that such sentencing actions would be without effect for immigration

purposes.

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III. CONCLUSION

It is unfortunate that the majority regard the Board as impotent to preserve the

immigration consequences that flow from an alien’s conviction and sentence

against the subsequent efforts of State judges when they manipulate a previously

imposed sentence at the behest of an alien solely to ameliorate or eliminate

such adverse immigration consequences. While such judges undoubtedly act

with benign intentions and in the belief that they are doing justice, in fact, by

substituting their judgment for the judgment of Congress as to whether an alien

should be deported or rendered ineligible for certain relief from deportation,

their actions detract from the evenhanded application of the law and thereby

arguably create injustice. As the Attorney General’s “delegates,” see 8 C.F.R.

§ 1003.1(a)(1), enjoined to decide cases consistent with the Act, we fail to

fulfill our responsibility by honoring such judicial orders that thwart the clear

intention of Congress.

The respondent does not dispute that the offense of receipt of stolen property

in violation of section 496(a) of the California Penal Code constitutes a

“receipt of stolen property” offense within the meaning of

section 101(a)(43)(G) of the Act. Matter of Bahta, 22 I&N Dec. 1381, 1391

(BIA 2000). Thus, because I conclude that the respondent’s conviction for that

offense resulted in a sentence to a term of imprisonment of at least 1 year, I

agree with the Immigration Judge that he is deportable (and ineligible for relief)

as an alien convicted of an aggravated felony.

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