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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, 

 (BIA 2001), clarified; Matter of Pickering,

 (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, 

(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,

(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, 

 (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, 

 (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, 

(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, 

 (BIA 1997); Matter of S-S-, 

 (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, 

 (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, 

 (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, 

, 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, 

 (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, 

(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, 

 (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, 

 (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, 

 (2d Cir. 2002)); see also United States v.
Hernandez, 

 (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. 

 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 . . . .”

 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, 

(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, 

 (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, 

(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, 

 505, 602(b)(1),

, 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, 

 (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, 

 (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 

(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, 

(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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