Attorney General Barr on sentence modifications, a Friday night massacre

Sunday, October 27th, 2019
By: Jonathan MontagJ.D.

Friday afternoon. Try to wrap up what’s almost done on your desk. Deal with those nettlesome late-in-the-day emails and phone calls. Get the mail out so it will be moving across the country over the weekend. Oh, and absorb a bomb shell from the Attorney General.

To begin, a little “administrative law” primer. Under the immigration laws, removal proceedings are handled by immigration judges, employees of the Department of Justice. (Yes, Virginia, the executive branch has adjudicative bodies (courts); in fact, many more than the judicial branch). Above the immigration judges is the Board of Immigration Appeals. Weighing law and precedent, they issue the decisions on the meaning of the immigration laws. And above the Board is the Attorney General who gets to override the Board and say what immigration law is. The judiciary has the power to review (some of) his decisions, but as it is structured, he is the big cheese, the decider, the law.

Late Friday afternoon, as the evening commute Beltway traffic was abating, he issued two decisions. In Matter of Castillo Perez, he decided that two driving under the influence convictions means a person presumably has bad moral character. More importantly, in Matter of Thomas and Thompson, Attorney General Barr decided that state-court sentence modifications will not have ameliorative immigration consequences unless they were because of procedural or substantive defects in the original proceeding.

What’s that mouthful of words all about? Under the immigration laws, certain crimes can lead to detention, removability, and/or ineligibility for relief. Often, it is the length of a sentence that determines whether a non-citizen can stay in the United States or must go. For example, suppose a non-citizen is convicted of assault with a deadly weapon. Get a sentence of a year or more and you are deportable and ineligible for most relief from removal. Get convicted as a felon and if you entered the illegally, you are subject to mandatory detention. Just one misdemeanor conviction and a sentence of less than six months, you’re probably fine. The length of the sentence and its denomination as a felony or misdemeanor are very important.

A non-citizen comes to your office (or a friend or family member if the non-citizen is detained) and explains that they got convicted of a crime that will result in deportation because of the nature of the conviction and sentence. Your advice is to undo the conviction and/or change the sentence.

Many state criminal codes have provisions for expunging (erasing) or pardoning criminal convictions after successful completion of periods of confinement and probation based on concepts of rehabilitation and giving second chances. With all kinds of variations over the years as to what crimes, at what times, and under what circumstances, the immigration laws accepted these vacaturs as eliminating the immigration consequences of a crime. The in 1996, Congress passed and President Clinton signed IIRAIRA, which defined a conviction at INA §(a)(48):

(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.

Noteworthy are two points about the definition:

1) There is no mention of the effect on the conviction of its being vacated;

2) References to sentencing are limited to a reference to “some form of punishment, penalty, or restraint,” and that suspended sentences count as the actual sentence, such as if a judge sentences a person to three years of confinement and to actually serve 30 days, then the actual sentence is deemed to be three years.

This minimal reference to sentences in the definition of a conviction allowed for a dichotomy in immigration law. If a criminal court judge vacated a conviction because he did not think it was right to deport a person because of the conviction or because a state expungement statute allowed for it by virtue of completing a sentence and probation, it would not help in the immigration context.

A sentence modification, making a year sentence a 364 day sentence or re-denoiminating a felony as a misdemeanor, would help in the immigration context. All the reasons one can imagine about applying “full faith and credit” to the decisions of state courts would apply to sentence modifications, but not conviction vacaturs because of the definition of conviction hardly discussing sentences.

Suppose you hate this. Suppose you think it is offensive or dangerous to society that a foreign person – a guest in this country, a snake invited into our house, – who breaks the law can waltz into criminal court, knock a day off his sentence, and walk. What do you do about the fact that the definition of conviction provides no solution? You find a way to work around it.

The Board of Immigration Appeals created such a work-around in Matter of Velasquez-Rios. That case considered what affect a California law that changed the default definition of the maximum sentence for a misdemeanor from a year to 364 days, Cal. Penal Code § 18.5. The case involved how the California statute applied to what is called the petty-crime exception. This exception relates to crimes of moral turpitude and states at INA § 212(a)(2)(A)(i)(II) that the moral turpitude crime inadmissibility ground does not apply to one crime of moral turpitude if:

the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

Mr. Velasquez-Rios sought relief from removal for being in the United States without having been inspected through Cancellation of Removal for Certain Nonpermanent Residents, which requires ten years of uninterrupted physical presence in the United States, a showing of exceptional and extremely unusual hardship to a legal parent, spouse, or child, and, among other things, not being inadmissible for a crime of moral turpitude. Mr. Velasquez-Rios argued that because his crime now had a maximum sentence of 364 days, his conviction fit under the petty-crime excection and he was in fact eligible for Cancellation of Removal.

What the Board of Immigration Appeals did was look at the exception and noticed it was all termed in the past tense – “for which the alien was convicted,” “alien admits having committed,” “was convicted,” “was not sentenced,” “was ultimately executed.” Because of all the past tense, the Board decided that the exception considered the nature of the sentence at the time of conviction and later reductions did not apply to the exception.

People, I believe, tended to look at Matter of Velasquez-Rios as merely concerning the retroactive application of the new California statute, rather than a head-on assault on sentence modification and the petty crime exception.

This move was clever enough, but did not cover all scenarios as not all modifications are because of the petty crime exception. Hence, Matter of Thomas and Thompson. Here, two permanent residents faced removal and without the ability to seek relief because of crimes of violence with a sentence of a year or more. Going into court and knocking the sentence down to less than a year would allow them to avoid deportation. The BIA applied the existing settled rules that sentence modification had effect in the case of Mr. Thompson, who was able to reduce his sentence from twelve months to eleven months and 27 days, and concluded that after his sentence was modified he was no longer removable.

Then Attorney General Barr stepped in. I suppose he could have applied the retroactivity argument as in Matter of Velasquez-Rios as the definition of conviction is also has some past tense in it – though it would be hard not to refer to a conviction in the past tense as convictions necessarily occur before removal for them. Instead, Attorney General Barr held that sentencing was an integral part of the conviction statute and, just as later vacaturs did not affect whether a person was convicted, later modifications of a sentence also did not affect what a person was sentenced to.

How does Attorney General Barr read into the definition of “Conviction” a right to define “Sentence.” He explains at Page 682 of his Matter of Thomas and Thompson decision:

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.

and a little more at Page 686:

In applying the Pickering test (allowing vacaturs only because of substantive or procedural errors in a conviction) to these state-court [sentencing modification] orders, the immigration judge is simply determining the meaning of the phrase “term of imprisonment or a sentence” in the INA for the purpose of enforcing federal immigration law.

To which a careful reader says, “What?”  Because the conviction statute mentions suspensions as not being effective, this suggests that modifications and clarifications are also not effective? Because the words “term of imprisonment” occur in the conviction definition, this gives the immigration court carte blanche to ignore sentence modifications?

Attorney General Barr is a gaslighter. [The term comes from the movie, “Gaslight” were Charles Boyer drives Ingrid Bergman crazy by telling her she is not seeing what she is actually seeing.]  No collusion. No obstruction. No quid pro quo. Perfect conversation. This is Barr World. By telling us sentencing is in the conviction definition, he is telling us the gaslights are not dimming. The forty percent of us who wear the red hats and the newly Federalist-ed federal courts  may agree, but for the rest of us, this is a dramatic change contrary to long judicial pedigree and acceptance and with, at best, a slim basis. Just how this will play out is unclear? Will the courts of appeal give deference to Attorney General Barr’s “reading” of the statute? Will his unilateral declaration of the law count as a reasoned adjudicative decision that must be deferred to? What about its retroactive affect – people accepted pleas and sentences based on the effectiveness of sentence modifications? Can they just be hung out to dry?

What a way to start a weekend. Posted October 27, 2019.


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