AG Issues Guidelines on State Criminal-Sentence Modifications

Returning to logic and uniformity by returning to the INA

By Andrew R. Arthur on October 30, 2019

On October 25, 2019, Attorney General (AG) William Barr issued a decision in Matter of Thomas and Matter of Thompson, which will return logic, order, and consistency to assessments by immigration judges (IJs) and the Board of Immigration Appeals (BIA) of their review of "state-court orders that modify, clarify, or otherwise alter a criminal alien's sentence". Pursuant to that decision, such orders will only have an effect on immigration proceedings, benefits, and relief if they are "based on a procedural or substantive defect in the underlying criminal proceeding", and not if they are "based on reasons unrelated to the merits of the underlying criminal proceeding, such as rehabilitation or the avoidance of immigration consequences."

Some explanation is necessary to frame that decision. Although immigration law is uniquely the province of the federal government, charges in removal proceedings are often premised on state court criminal convictions. For example, section 237(a)(2)(A)(iii) of the Immigration and Nationality Act (INA) renders removable any alien who has been convicted of an aggravated felony after admission. Included in the aggravated felony definition at section 101(a)(43)(F) of the INA is "a crime of violence (as defined in section 16 of title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year." This applies to not only federal criminal convictions, but also crimes under state law as well.

State courts will often attempt to vacate a conviction that would render an alien removable, or modify or "clarify" a criminal sentence for such a conviction, after that conviction is entered, and (in certain instances) after the sentence itself has been served. This is sometimes done for issues relating to the legality of the conviction, and sometimes for other reasons, including to allow criminal aliens to avoid the immigration consequences of those convictions. IJs and the BIA in those instances are left to determine what effect, if any, the underlying state convictions and sentences have for immigration purposes.

For example, in Matter of Pickering, the BIA held:

If a court vacates an alien's conviction for reasons solely related to rehabilitation or immigration hardships, rather than on the basis of a procedural or substantive defect in the underlying criminal proceedings, the conviction is not eliminated for immigration purposes.

That decision makes sense. Immigration is solely within the purview of the federal government, and although a state conviction may form the basis for removal, the several states have no power under our federal system to weigh in on the logic of Congress's decision to render certain aliens removable for specified criminal offenses.

Prior to the AG's decision, however, the law was a bit less clear as related to "state-court orders that modif[ied], clarif[ied], or otherwise alter[ed] a criminal alien's sentence".

In Matter of Cota, for example, the BIA held:

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 [IJs] and the [BIA], 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.

This gave state court judges significant arbitrary power to meddle in the federal sphere, by allowing them to "modify or reduce" a sentence after the fact to allow an alien to escape the immigration consequences of his or her criminal activities.

In Matter of Estrada, on the other hand, the BIA held:

Where the respondent's original sentence for his [state] conviction was ambiguous as to whether he was sentenced to probation or a probated term of imprisonment, a clarification order issued by the sentencing judge to correct an obvious discrepancy in her original order will be given effect in determining whether the respondent was sentenced to a term of imprisonment of at least 1 year. [Emphasis added.]

That decision makes a little more sense. State criminal conviction records are often not as clear as the average IJ would hope, and this is especially true in the case of criminal conviction records from a state with which the IJ is not familiar. A clarification order that does not modify or change the original sentence can greatly assist the immigration court in such a case. At least in the abstract.

The cases of Thomas and Thompson demonstrate, however, how these rules relating to sentencing can have inconsistent effects that Congress plainly did not intend.

At issue in both of the cases under consideration by the AG was the same Georgia statute: family violence battery under Ga. Code Ann. § 16-5-23.1(f). That provision states, in pertinent part:

(a) A person commits the offense of battery when he or she intentionally causes substantial physical harm or visible bodily harm to another.

(b) As used in this Code section, the term "visible bodily harm" means bodily harm capable of being perceived by a person other than the victim and may include, but is not limited to, substantially blackened eyes, substantially swollen lips or other facial or body parts, or substantial bruises to body parts.


(f)(1) As used in this subsection, the term "household member" means past or present spouses, persons who are parents of the same child, parents and children, stepparents and stepchildren, foster parents and foster children, or other persons living or formerly living in the same household.

There does not seem to be any question that the offense as described is a crime of violence under 18 U.S.C. § 16(a), that is "an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another." Both respondents were sentenced to a term of imprisonment of 12 months for those offenses, and both were charged with removability as aliens convicted of an aggravated felony as defined in section 101(a)(43)(F) of the INA.

Thomas was ordered removed and, while his case was pending before the BIA, he asked the state court to alter his criminal sentence. The AG explained:

Thomas did not allege any procedural or substantive defect in the original criminal proceeding, which occurred over fifteen years before, but upon the consent of the prosecution, the state court issued an order stating, "Defendant's sentence in the above matter is hereby clarified to reflect that Defendant was sentenced to a cumulative term of 11 months and 28 days of probation."

The BIA remanded the case to the IJ, who decided that the order should not be given any effect. That decision was upheld by the BIA. Specifically, because the state-court order "clarified" the sentence Thomas received, the BIA reviewed that order in accordance with Matter of Estrada:

The [BIA] observed that — in contrast to the situation of the alien in [Matter of Estrada] — Thomas's original sentencing order was clear; a significant period of time (approximately fifteen years) had passed between the original sentence and the clarification; and the state-court judge clarifying the sentence differed from the original sentencing judge. The [BIA] thus declined to credit the "clarification" of Thomas's sentence, and he was deemed removable.

Thompson was also placed into removal proceedings based upon his conviction. While his case was pending before the IJ, "Thompson filed a 'Motion to Modify Sentence'" with the Georgia state court. In that motion, he asked the court to reduce his sentence from 12 months to 11 months and 27 days. The state court granted that motion the same day it was filed, notwithstanding the fact that Thompson failed to "identify any defect in the original criminal proceeding."

He admitted before the IJ that he had been convicted of a crime of violence, but "argued that his modified sentence did not amount to a term of imprisonment of that least one year." The IJ rejected this argument, but the BIA reversed the IJ's decision on appeal. While it "acknowledged that there were questions concerning whether the Georgia state court had jurisdiction to issue the order and that the timing of the order suggested that it may have been issued to affect the immigration court proceeding," the BIA, in accordance with Matter of Cota-Vargas, held that it was required to "'give full effect' to the modified sentence."

As the AG succinctly stated:

Both Thomas and Thompson were convicted of the same state law offense, were charged with removability on the same ground, and petitioned the state courts to alter their sentences without alleging any procedural or substantive defects in the original proceeding. Yet these similarly situated aliens faced markedly divergent consequences. Relying on a semantic distinction between a "clarification" and a "modification," the [BIA] found that Thomas was removable but Thompson was not.

To avoid such a discrepancy in the future, the AG overruled Matter of Cota and Matter of Estrada (as well as Matter of Song, which preceded Matter of Cota), and held that the test in Matter of Pickering "should apply to state-court orders that modify, clarify, or otherwise alter the term of imprisonment or sentence associate it with the state-court conviction." Specifically, he found that such alterations to terms of imprisonment or sentence "will have legal affect for immigration purposes if they are based on a procedural or substantive defect in the underlying criminal proceeding, but not if they are based on reasons unrelated the merits, such as rehabilitation or immigration hardship." (Emphasis added.)

In support of his decision, the AG looked to the definition of "conviction" and "term of imprisonment or a sentence" in section 101(a)(48) of the INA:

(A) 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.

(B) Any reference to a term of imprisonment or 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.

The AG noted:

An alien plainly has been convicted under the INA when a court has entered "a formal judgment of guilt," and he has received a sentence when the court orders a "period of incarceration or confinement," no matter whether that sentence is executed.

The question then is whether the state court's subsequent alteration of a "conviction" or a "sentence" changes those facts under the INA.

Looking at the legislative history of section 101(a)(48) of the INA (which was added by section 322 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)), the AG concluded that in enacting this provision, Congress "made clear that immigration consequences should flow from the original determination of guilt," and "ensured uniformity in the immigration laws by avoiding the need for immigration judges to examine the post-conviction procedures of each state."

Because the statutory history of section 101(a)(48) of the INA confirmed that the proof of a conviction for immigration purposes was found in the "original adjudication or admission of guilt", (emphasis in the original), and because "the length of a 'term of imprisonment or a sentence' is calculated 'regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part" (emphasis again in the original), the AG held:

The length of a sentence for immigration purposes thus ignores "suspensions" (whether occurring at the time of sentencing or thereafter), suggesting that other post-sentencing events — such as modifications or clarifications — should not be relevant under the immigration laws. Accordingly, the phrase "term of imprisonment or a sentence" in paragraph (B) is best read to concern an alien's original criminal sentence, without regard to post-sentencing alterations that, like a suspension, merely alleviate the impact of that sentence.

He continued:

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. 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.

In addition, he concluded that application of Pickering "to all forms of state-court sentenced alterations resolves inconsistencies among the states' 'crazy quilt of ... widely disparate state rehabilitative and diversionary arrangements,'" and ensures that "similarly situated aliens in different states will face similar consequences."

With respect to this latter point, the AG held:

Whether one state affords more or less generous mechanisms for altering a sentence for rehabilitative purposes will be irrelevant. Only those alterations based on legal defects will receive effect. The country's immigration system will thereby achieve more uniform results.

In providing these bright-line rules for IJs and the BIA, the AG will make it easier for those adjudicators to determine whether individual criminal aliens are removable, and will limit the number of continuances that are required for the parties in removal proceedings to submit additional evidence and brief issues related to often arcane state-court procedures. Most importantly, however, it will help to ensure uniformity, divest state court judges of their ability to interfere in core federal questions, and return the authority to determine whether an alien should be removed, or not, to Congress and, by delegation, the AG, IJs, and the BIA.

There is only one immigration law, and that is the law as Congress has written it. It is past time to return to this basic principle.