Term of Confinement Issued as Condition of a Probation Sentence Qualifies as "Term of Imprisonment"

 

Introduction: Matter of Calvillo Garcia and Clarifying “Term of Confinement”

term of imprisonmentOn December 9, 2015, the Board of Immigration Appeals (BIA) issued an important precedent decision in Matter of Calvillo Garcia, 26 I&N Dec. 697 (BIA 2015) [decision PDF]. The decision addressed whether term of confinement in a substance abuse treatment facility as a condition of probation under Texas law constitutes a “term of confinement” under section 101(a)(48)(B) of the Immigration and Nationality Act (INA) for purpose of determining if an offense is an immigration aggravated felony for a “crime of violence” under section 101(a)(43)(F). The BIA held that a term of confinement issued as a condition of a probation sentence qualifies as a “term of confinement” under section 101(a)(48)(B). This article will explain the background of the case, the reasoning behind the decision, and what the precedent means for aliens facing criminal charges or convictions.

Case Background: Matter of Calvillo Garcia

The respondent in the case had been admitted to the United States as a lawful permanent resident (LPR) in 1997. He was convicted of possession of marijuana under Texas law in 2008.1 He was subsequently charged with aggravated assault under Texas law.2 In 2009, the criminal court deferred adjudication of the respondent's guilt and sentenced him to 5 years of community supervision.3 As a condition of the community supervision, he was order to “serve an indeterminate term of confinement and treatment of not more than one year or less than 180 days in a substance abuse treatment facility…”4

Subsequent to the sentence, the respondent traveled abroad and then applied for admission to the United States at a port of entry in January of 2015. The Department of Homeland Security charged him with inadmissibility due to his convictions for a crime of moral turpitude (CIMT) and a controlled substance violation5 and placed the respondent in removal proceedings. The respondent conceded inadmissibility and sought LPR cancellation of removal under section 240A(a) of the INA. The Immigration Judge (IJ) determined that the respondent was ineligible for cancellation of removal under section 240A(a)(3) due to his aggravated assault conviction being an aggravated felony under section 101(a)(43)(F). The IJ found held that the aggravated assault conviction was a categorical crime of violence and that the sentence qualified because it included a term of imprisonment of up to one year.

The Question in Matter of Calvillo Garcia

The BIA described the question as follows:

“Whether a term of confinement in a substance abuse treatment facility imposed as a condition of probation constitutes a 'term of confinement' under section 101(a)(48)(B) of the Act for purposes of determining whether an offense is a crime of violence under section 101(a)(43)(B).”

Section 101(a)(43)(F) defines a as an “aggravated felony” “a crime of violence (as defined in section 16 of title 18, but not including a purely political offense) for which the term of imprisonment is at least one year.”

Section 101(a)(48)(B) provides that “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.”

The BIA Decision in Matter of Calvillo Garcia

The respondent conceded that the statute under which he was charged with aggravated assault was a categorical “crime of violence” and that his “deferred adjudication” qualified as a conviction under section 101(a)(48)(A) of the INA.6

The respondent staked his appeal to the BIA on the assertion that his term of confinement in a substance abuse felony punishment facility imposed as a condition of his probation did not qualify as a “term of imprisonment [of] at least one year” under section 101(a)(43)(F).

The BIA rejected the respondent's arguments.

Firstly, the BIA cited favorably the Immigration Judge holding, in accordance with both Fifth Circuit and BIA precedent, that “an indeterminate sentence is to be considered a sentence for the maximum term imposed.”7 In this case, that means that the sentence is considered to be “one year” regardless of whether the respondent was actually confined for the entire year.

Secondly, the BIA rejected the respondent's argument that the time spent in confined in a substance abuse treatment facility was not “imprisonment” because of the nature of the confinement. The BIA noted that section 101(a)(48)(B) provides that a “term of imprisonment” is defined as a “period of incarceration or confinement…”8 Furthermore, the BIA noted that under Texas law, the respondent was not free to leave the facility during his period of confinement.

Thirdly, the BIA rejected the respondent's argument that the sentence was a “term of imprisonment” because he was sentenced directly to probation. In reaching this decision, the BIA cited favorably Hernandez v. Holder, 760 F.3d 855 (8th Cir. 2014) [decision PDF]. The Eighth Circuit held that a sentence imposed as a condition of a probation sentence constitutes a “term of imprisonment” as defined by 101(a)(48)(B). The BIA distinguished the situation at hand, where confinement is ordered as a condition of a probation sentence, from the Firth Circuit (Texas falls under the jurisdiction of the Fifth Circuit) decision in United States v. Mondragon-Santiago, 564 F.3d 357 (2009) [decision PDF] which held that when a sentencing court orders probation directly, the conviction does not count as a term of imprisonment or an aggravated felony.

Accordingly, the BIA rejected the respondent's appeal and affirmed the IJ's ruling that the respondent was ineligible to apply for cancellation of removal on account of his conviction for an aggravated felony.

Conclusion: Matter of Calvillo Garcia and Clarifying “Term of Confinement”

The Matter of Calvillo Garcia sets forth the precedent that a term of confinement issued as a condition of a probation sentence qualifies as a “term of imprisonment” under immigration laws.

The immigration consequences of a criminal conviction are often not immediately evident. This is because the facts of a given conviction are unique, and the immigration laws regarding criminal aliens are written in broad strokes. Because of this, it is absolutely imperative that aliens facing criminal charges consult with an experienced immigration attorney. An experienced immigration attorney will be able to use his or her knowledge of statutes, regulations, and case-law to advise an alien about the potential immigration consequences that would accompany different outcomes in the criminal proceedings.

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  1. Under section 481.121(b)(1) of the Texas Health and Safety Code
  2. Under section 22.02(a)(2) of the Texas Penal Code
  3. Under article 42.12 of the Texas Code of Criminal Procedure
  4. Passage quoted by the BIA in its decision. The term order was authorized by under Section 493.009 of the Government Code of Texas.
  5. Under INA § 212(a)(2)(A)(i)(I) and (II)
  6. The BIA cited United States v. Mondragon-Santiago, 564 F.3d 357, 368 (5th Cir. 2009) [5th Circuit held that “deferred adjudication” under Texas law qualified as a conviction under federal law]; Matter of Punu, 22 I&N Dec. 224, 228 (BIA 1998) [holding that “deferred adjudication” under Texas law was a conviction for immigration purposes]
  7. The BIA cited Pichardo v. INS, 104 F.3d 756, 759 (5th Cir. 1997); Matter of S-S-, 21 I&N Dec. 900, 903 (BIA 1997)
  8. The BIA also cited Ilchuk v. Att'y Gen. of U.S., 434 F.3d 618, 623 (3d Cir. 2006) [house arrest with electronic monitoring was “term of imprisonment” under 101(a)(48)(B)]