Matter of Song: BIA Terminates Removal Proceedings for Respondent with Reduced Sentence

IMMIGRATION LAW & POLICY

Removal Issues Concerning Criminal Convictions

MATTER OF SONG: BIA TERMINATES REMOVAL PROCEEDINGS FOR RESPONDENT WITH REDUCED SENTENCE
Immigrants' Rights Update, Vol. 15, No. 6, Oct. 8, 2001

The Board of Immigration Appeals has terminated removal proceedings for Min Song, an individual whose one-year sentence for theft was decreased to 360 days. The reduced sentence, the BIA ruled, effectively removed Song from the reach of provisions in the Immigration and Nationality Act relating to the definition of "aggravated felony."

Song, a native Korean who had been admitted to the U.S. as a lawful permanent resident in 1981, was convicted of theft and sentenced to a year in prison in the late 1980s. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 amended the INA's definition of "aggravated felony" to include theft offenses for which the term of imprisonment is at least one year. Individuals found removable for aggravated felony convictions are also rendered ineligible for any relief from removal. Thus, based on his theft conviction, Song was placed in removal proceedings and subsequently ordered removed by the immigration court.

On appeal, Song challenged the immigration court's finding that his aggravated felony conviction made him ineligible for relief under the INA. Prior to filing his appellate brief, Song applied for and obtained an order vacating and revising his previous sentence nunc pro tunc to 360 days. Nunc pro tunc orders are used by courts to revise prior judgments or orders in matters where the court originally had jurisdiction. The new order replaces the original and is considered to have the same status, notwithstanding the modification.

In his appellate brief, Song presented new evidence demonstrating that his criminal sentence had been reduced to 360 days. As Song's new conviction was for a term of less than one year, the BIA determined that he could no longer be considered an aggravated felon. In reaching its decision, the BIA relied on Matter of Martin, 18 Int. Dec. 226 (1982), in which it ruled that where an individual is resentenced for a crime, the new sentence determines whether or not he or she is deportable.

The BIA distinguished its ruling in Matter of Roldan-Santoyo, Int. Dec. 3377 (BIA 1999), which held that the IIRIRA provision defining "conviction" for immigration purposes precludes the BIA from giving effect to expungements or other post-conviction state rehabilitative orders. In this case the definition of "conviction" is not at issue; the sentence reduction did not eliminate the fact that there was a conviction, but rather changed the term of imprisonment such that the conviction falls outside the definition of an aggravated felony.

Matter of Song, 23 I. & N. Dec. 173 (BIA 2001).