Cite as 27 I&N Dec. 674 (A.G. 2019)
683
criminal sentence, without regard to post-sentencing alterations that, like a
suspension, merely alleviate the impact of that sentence.
This reasoning, which supports the Pickering test, should likewise extend
to all state-court modifications, clarifications, and other alterations of a
criminal sentence. If the original sentence was altered because of a legal
defect, then the sentence was not legally effective, and there is no valid
sentence to which immigration consequences can attach. The original
sentence—because of the defect—should not have been entered in the first
place. If, in contrast, a state court later alters an earlier sentence for
rehabilitative or immigration reasons, then the immigration consequences of
that sentence under section 1101(a)(48) remain unchanged because section
1101(a)(48) addresses the alien’s original term of imprisonment or sentence.
See Saleh, 495 F.3d at 24 (explaining that “Congress did not intend to allow
an alien to escape [immigration] consequences by means of a state vacatur
that was not on the merits”).
Said differently, Congress has determined that an alien who is convicted
of a crime that is sufficiently serious to warrant a significant sentence should
be subject to removal. Later alterations to that sentence that do not correct
legal defects, do not change the underlying gravity of the alien’s action. They
accordingly do not affect Congress’s judgment as to whether that alien
should be removed. Such an alteration therefore should have no effect for
purposes of the immigration laws. Cf. id. at 25 (“When a conviction is
amended nunc pro tunc solely to enable a defendant to avoid immigration
consequences, in contrast to an amendment or vacatur on the merits, there is
no reason to conclude that the alien is any less suitable for removal.”).
Applying the Pickering test to all sentence alterations thus ensures that aliens
who have committed significant crimes, as identified by Congress, do not
later avoid the immigration consequences of those actions.
Furthermore, the application of a single test to state-court sentence
alterations promotes uniformity in the law. In the cases currently under
review, for example, applying the Pickering test should avoid the
inconsistent results that apply to the two similarly situated respondents. If
neither state court altered the respondent’s sentence on the basis of “a
procedural or substantive defect in the underlying proceedings,” see
Pickering, 23 I&N Dec. at 624, then the Pickering test would dictate the same
immigration consequence for both respondents.
In addition, applying the Pickering test to all forms of state-court sentence
alterations resolves inconsistencies among the states’ “crazy quilt of . . .
widely disparate state rehabilitative and diversionary arrangements.”
Herrera-Inirio, 208 F.3d at 305; see also, e.g., Pinho v. Gonzales, 432 F.3d
193, 205 (3d Cir. 2005) (observing that the Board in the past has been