EAH Immigration Blog

USCIS Issues Policy Guidance on Post-Sentencing Changes

In immigration law, certain criminal acts have immigration consequences, rendering an applicant inadmissible, deportable, or ineligible for the immigration benefit being sought. USCIS issued policy guidance – and updated its USCIS Policy Manual – regarding how post-sentencing changes to criminal sentences affect convictions for immigration purposes.

An immigrant convicted of an aggravated felony is ineligible for most forms of relief or protection from removal. Notably, the INA defines an “aggravated felony” to include a “crime of violence” for which “the term of imprisonment [is] at least one year.” On October 25, 2019, the Attorney General held that a “term of imprisonment or a sentence” refers to the alien’s original criminal sentence without regard to post-sentencing alterations for reasons other than a procedural or substantive defect.

Dating back to at least 1982, the Board of Immigration Appeals (BIA) has held that a sentence modification shall be given full effect, regardless of the rationale for the modification. In other words, an individual could move to modify an imposed sentence solely to avoid immigration consequences, and that modification would be given full faith and credit by immigration courts. Not so anymore. Now, immigration courts will no longer give effect to sentence modifications made solely to avoid immigration consequences. Instead, a sentence modification must be based at least in part on a ground of procedural or substantive invalidity only for immigration authorities to give it full faith and credit.

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