The immigration consequences to a criminal conviction may be very complex and directly affect the immigrant’s ability to stay in the United States. An alien who has been convicted of a crime that affects the immigration status, still has hope in mitigating the immigration ramifications of the conviction. A post-conviction sentence modification may be effective in avoiding a conviction for immigration purposes or to eliminate an aggravated-felony ground of deportability. Motions to correct criminal sentence rules vary by State.
A criminal sentence modification results in a reduction of the criminal sentence. A criminal sentence can be modified after the trial is done, even if the offender is already in jail. During trial, the defendant may request a sentence modification at any time during the sentencing portion of trial. A sentence illegally imposed must be corrected within 120 days. A sentence is illegal when the court goes beyond its authority by acting without jurisdiction or imposing a sentence in excess of the statutory maximum.
If the judge concludes that the new factors are in the defendant’s favor, they have discretion to modify the sentence accordingly. A Motion to correct criminal sentence allows modification when:
An error was made in the sentence and needs to be corrected;
The defendant has assisted in another criminal case by cooperating with prosecutors to provide information or testimony;
Other factors can be applied, such as a sentence reduction based on the offender’s age, terminal illness, or changes in state sentencing guidelines.
The defendant and the immigration attorney will need to file a motion and the judge will then conduct a hearing on the motion. You must file motion under 28 U.S.C. 2255 to vacate, set aside, or correct in the United States district court that entered the judgment that you are challenging. If you want to challenge a federal judgment that imposed a sentence to be served in the future, you should file the motion in the federal court that entered that judgment. You may challenge the judgment entered by only one court. If you want to challenge a judgment entered by a different judge or division (either in the same district or in a different district), you must file a separate motion. A 2255 motion is often the correct remedy for prisoners who have been sentenced illegally or unfairly. Section 2255 expressly provides for challenges to a sentence on specified grounds.
Once the motion is under review, the defendant must demonstrate that there are new factors in existence that would justify a criminal sentence modification. New factors may be facts or a set of facts that:
Are unknown to the trial judge at the time they imposed the original sentence;
Frustrates the aim or goal of the original sentence;
Are not in existence at the time of sentencing;
Are unknowingly disregarded by all parties.
In most jurisdictions, if the initial sentence is greater than 3 years, the prosecutor must agree to have the motion reviewed. The Board of Immigration Appeals (BIA) held in a published decision that reductions in criminal sentences nunc pro tunc (with retroactive legal effect) should be recognized for immigration purposes. This is an important legal ruling that can help immigrants with certain criminal convictions obtain immigration benefits or avoid deportation.
Non-U.S. citizens with criminal convictions, placed in deportation proceedings or seeking immigration benefits, should seek representation by knowledgeable and experienced immigration attorneys. Your attorney can help determine whether criminal sentence modification is available for your case, and can help you file the proper motions and requests. The immigration consequences to criminal convictions can be harsh and complex, ranging from delays to naturalizing as a U.S. citizen to triggering deportation proceedings.