Introduction: Matter of H. Estrada — Deference to Clarifying Orders in Order to Determine Length of Term of Imprisonment

In the Matter of H. Estrada, 26 I&N Dec. 749 (BIA 2016) [PDF version], the Board of Immigration Appeals (BIA) found that when a sentencing order is ambiguous as to whether an alien was sentenced to a term of imprisonment of at least one year, the sentencing judge’s clarifying order may be considered as evidence. The clarifying order at issue in the Matter of H. Estrada was used to determine that the respondent had not been sentenced to a term of imprisonment of at least one year for purpose of his conviction being an aggravated felony [see article] for a crime of violence under section 101(a)(43)(F) [see section] of the Immigration and Nationality Act (INA).

Because the Matter of H. Estrada dealt with two distinct issues, we have broken the case into multiple articles for your convenience. Before reading further, please read our article providing an overview of the Matter of H. Estrada and an in-depth look into the facts of the case [see article].

To read about the portion of the Matter of H. Estrada that concerns how a conviction should be analyzed to determine whether it is a crime of domestic violence under section 237(a)(2)(E)(i), please see our full article [see article].

Brief Overview

The respondent, a lawful permanent resident (LPR), was convicted of simple battery in violation of section 16-5-23(a)(2) of the Georgia Code Annotated under a guilty plea. The immigration judge found that this conviction was for an aggravated felony for a crime of violence under section 101(a)(43)(F) of the INA.

BIA Analysis on Whether Conviction was for a Crime of Violence Aggravated Felony

In order for a conviction to be for an aggravated felony for a crime of violence, section 101(a)(43)(F) requires that it result in a “term of imprisonment [of] at least one year.”

The Board noted that the respondent’s conviction record “includes a sentencing document on a preprinted form that provides for only two possible sentences: imprisonment or imprisonment with some or all of the term being served on probation.” Furthermore, the Board noted that the form order did “not allow for the possibility of probation as a separate punishment without a corresponding probated term of imprisonment.” Relevant precedent from the Eleventh Circuit in United States v. Ayala-Gomez, 255 F.3d 1314, 1317-19 (11th Cir. 2001) [PDF version] holds that the phrase “term of imprisonment” in the INA “encompasses any amount of a prison or jail sentence that is ‘probated’ under Georgia law” (summarized by the Board). Accordingly, if the respondent was sentenced to time in prison or jail that was “probated,” that would count toward the 12-month requirement to trigger section 101(a)(43)(F).

On the form order, the sentencing judge indicated both that the respondent would serve 12 months in the State Penal System and that the respondent would be on probation (after crossing out the language relating to the imposition of a probated sentence). It was accordingly unclear, for purposes of determining whether the respondent’s conviction was for an aggravated felony, if he had in fact been sentenced to a term of imprisonment of at least one year.

Subsequent to the form order, the sentencing judge issued a “Order Clarifying Sentence.” The clarifying order made explicit that “[n]o portion of the probationary time was subject to any term of confinement whatsoever.” Based upon the information in the clarifying order, the respondent’s conviction would not be an aggravated felony for a crime of violence because it did not result a term of imprisonment of at least one year.

However, the Immigration Judge disregarded the clarifying order, finding that under Eleventh Circuit precedent in United States v. Garza-Mendez, 735 F.3d 1284 (11th Cir. 2013) [PDF version], clarifying orders were not entitled to deference. Thus, the Immigration Judge found that the sentencing order itself indicated that the respondent had been sentenced to a term of imprisonment of at least one year.

On appeal, the Board stated that it did not believe that Garcia-Mendez applied to all clarifying orders. The Board noted that there were significant differences in Garcia-Mendez and the instant case. For example, the Board noted that one of the Eleventh Circuit’s concerns in Garcia-Mendez was that “the original order was clear with respect to the imposition of a 1-month sentence to confinement.” Furthermore, in Garcia-Mendez, the clarifying order “was obtained from a different judge, long after entry of the original State sentence, for the purpose of preventing enhancement of the defendant’s sentence for unlawful reentry in Federal Court.” In the instant case, the Board noted that the original order was ambiguous. Furthermore, it weighed the fact that the clarifying order was issued by the sentencing judge and that “she is in the best position to ascribe meaning to the otherwise ambiguous alterations she made on the preprinted form order.” Furthermore, the Board cited to Georgia appellate court decisions which affirmed the authority of state judges to “correct discrepancies that arise from the use of preprinted sentencing forms.”

The Board affirmed the respondent’s appeal with respect to his conviction not being for a crime of violence because he was not sentenced to a term of imprisonment of at least one year.

Conclusion: Matter of H. Estrada — Deference to Clarifying Orders in Order to Determine Length of Term of Imprisonment

In the Matter of H. Estrada, the Board found that under certain circumstances, a sentencing judge’s clarifying order to his or her original sentence may be considered in determining the length of the sentence if the original sentencing order is ambiguous. However, it is important to note that the Matter of H. Estrada does not address every scenario for when a clarifying order may be entitled to deference. In distinguishing the Matter of H. Estrada from the Eleventh Circuit decision in Garcia-Mendez, the Board did not register disagreement with Garcia-Mendez, but rather focused on the differences between the facts of Garcia-Mendez and H. Estrada.

The Matter of H. Estrada indicates that if the clarifying order was issued by the sentencing judge to correct or clarify an ambiguous sentencing order (preprinted in this case), it may be entitled to deference. Furthermore, the Board noted Georgia state law and precedent which indicates that the sentencing judge acted within her authority in issuing the clarifying order, making it likely that the laws of specific jurisdictions will also be considered in determining whether deference should be given to a clarifying order. It is possible that in a situation such as the one in Garcia-Mendez where a different judge than the sentencing judge issues a clarifying order or does so explicitly for immigration purposes, the Board would find that a clarifying order is not entitled to deference.

If an alien is charged with an aggravated felony of any sort, he or she should consult with an experienced immigration attorney immediately. If there is ambiguity in the length of the alien’s sentence that is determinative in whether the alien’s conviction was for an aggravated felony, an experienced immigration attorney will be able to explore all avenues to see if there is evidence to demonstrate that the ambiguity should be resolved in favor of the alien.