In the case of Vitaliy Chmukh v. Garland, the Ninth Circuit Court of Appeals has determined that a Washington conviction for possession of a stolen vehicle qualifies as an aggravated felony. This holds true if it is accompanied by a sentence of at least one year of imprisonment. The court also held that this conviction was a “particularly serious crime.” Therefore, it made the petitioner, Vitaliy Chmukh, ineligible for asylum and withholding of removal. The court’s decision affirms the prior rulings of the Immigration Judge (IJ) and the Board of Immigration Appeals (BIA).
Aggravated Felony — advanced issues, defenses, and practical litigation steps (Part 3)
This page continues our practical series on aggravated felonies by focusing on advanced analytical issues practitioners face: post-conviction relief and its immigration effect, how later sentence modifications interact with the categorical approach, strategies for preserving appellate issues, and narrow relief options that sometimes remain available even after an aggravated-felony characterization.
Advanced screening points
- Record-of-conviction specifics: obtain minute orders, plea colloquies, indictments, and sentencing records—small differences can decide the categorical analysis.
- Sentence imposed vs. suspended time: confirm the actual sentence executed at entry and any later changes that might affect the one-year threshold.
- Post-conviction relief: assess whether vacaturs, resentencing, or expungements change the immigration record under controlling circuit precedent.
Defense & litigation strategies
- Obtain certified conviction records immediately and preserve the record.
- Apply the modified categorical inquiry only to Shepard-authorized documents when a statute is divisible.
- Coordinate plea strategy with criminal counsel to seek non-immigration-triggering dispositions.
- Preserve appellate issues through motions to vacate or appeals; raise categorical challenges before the BIA and on federal review.
Narrow remedies to consider
- Plea withdrawal or vacatur for ineffective assistance or coercion.
- Resentencing or other post-conviction orders that alter the sentence length.
- Equitable arguments in discretionary relief and clemency avenues where appropriate.
We provide conviction audits, plea-strategy memos, post-conviction motions, BIA briefs, and federal petitions for review.
