California One-Year Custody as Condition of Probation May Not
Constitute Aggravated Felony One-Year Sentence Imposed
By Norton Tooby
Many aggravated felony definitions require that the court order a term of imprisonment for a qualifying conviction of one year or more, or they are not aggravated felonies. For many of the most common aggravated felonies, the sentence imposed is decisive. These offenses constitute aggravated felonies if and only if a sentence of one year or more in custody is ordered by the court. Therefore, for these offenses, the many defenses against a sentence imposed of one year or more constitute complete defenses to aggravated felony status. See N. TOOBY & J. ROLLIN, AGGRAVATED FELONIES § 3.63 (2006)(updated monthly online).
The following offenses, in alphabetical order, constitute aggravated felonies only if custody of one year or more was ordered by the sentencing court. 
• accessory after the fact 
• bribery of a witness 
• burglary 
• commercial bribery 
• counterfeiting 
• crimes of violence 
• document fraud 
• forgery 
• obstruction of justice 
• perjury 
• receipt of stolen property 
• subornation of perjury 
• theft 
• trafficking in vehicles with altered identification numbers 
Immigration counsel can make two related arguments that this definition is not met, in the common situation in which the custody time appears not in a judgment of the court, but rather as a voluntary agreement by the defendant to serve the time as a condition of probation. California law is used as the context for this argument, but counsel may find that this argument can be made with respect to convictions from other jurisdictions as well.
Where the following conditions are met, immigration counsel can argue that the custody imposed in a criminal case is not imposed for the conviction, but rather as part of a probation agreement, so the conviction does not constitute an aggravated felony, because the sentence-imposed requirement is not met: 
(1) a person is convicted of a crime,
(2) imposition of judgment is suspended,
(3) the person is placed on probation,
(4) and agrees to serve 365 days in the county jail as a condition of probation.
Under these conditions, immigration counsel can argue that the defendant is serving the time in custody not as a result of a court order, but as a result of agreeing to a condition of probation that s/he serve the time. If the crime is an aggravated felony if and only if a sentence to imprisonment of one year or more is imposed for the conviction, then counsel can argue that this one year of custody is not imposed on account of the conviction, but instead as a condition of probation.
The aggravated felony deportation ground, INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), when read with the aggravated felony definition, e.g., for crimes of violence, INA § 101(a)(43)(F), 8 U.S.C. § 1227(a)(43)(F), requires that there must be a “conviction” for a “crime of violence . . . for which the term of imprisonment is at least one year . . . .” Therefore, if the term of imprisonment is not imposed “for” the conviction, but rather is agreed to as a condition of probation, then the conviction does not qualify as an aggravated felony.
In addition, immigration counsel can argue that in the context of custody as a condition of probation, the custody has not been “ordered.” INA § 101(a)(48)(B), 8 U.S.C. § 1101(a)(48)(B). Instead, the defendant has agreed to serve the time as a condition of probation, evidenced by the defendant’s signature and oral statement in court of agreement to the conditions of probation, which cannot be imposed without the defendant’s agreement.
California Penal Code § 1203.1 authorizes the sentencing court to impose a fine or county jail incarceration as a condition of probation. This fine or jail is not considered to be imposed on account of the conviction, however, but instead as a condition of probation. (See League of Women Voters of California v. McPherson (2006) 145 Cal.App.4th 1469, 1481 ["The defendant who has been placed on probation, therefore, is imprisoned by the court in a local facility as a condition of probation, not as a result of the conviction of a felony"].) This statute may be used only when the court "suspend[s] the imposing or the execution of the sentence . . . ." (Penal Code § 1203.1; see People v. Mauch (2008) 163 Cal.App.4th 669, 674–675, 77 Cal.Rptr.3d 751.) "Fixing the penalty for crimes is the province of the Legislature, which is in the best position to evaluate the gravity of different crimes and to make judgments among different penological approaches." (People v. Martinez (1999) 76 Cal.App.4th 489, 494.) "The definition of crime and the determination of punishment are foremost among those matters that fall within the legislative domain." (People v. Mills (1978) 81 Cal.App.3d 171, 176-177; accord, Tracy v. Municipal Court (1978) 22 Cal.3d 760, 765 ["the Legislature has the power and duty to define and classify crimes and offenses"].)’
There are reasonable counter-arguments to this argument, principally that this question is not a question of state law, but rather is to be decided as a matter of uniform federal immigration law, and should not be subject to the vagaries of the differing laws of the 50 states. It is a perfectly reasonable argument, however, and any adverse authority has not overruled this argument, and so is not a narrow holding to the contrary, because this argument is believed to be novel and has not been raised in any case so far, as far as I am aware. Since it was not raised, it has not been rejected. (R.A.V. v. City of St. Paul, 112 S.Ct. 2538, 2545, 120 L.Ed.2d 305 (1992) ["It is of course contrary to all traditions of our jurisprudence to consider the law on [a] point conclusively resolved by broad language in cases where the issue was not presented or even envisioned"]; United States v. Vroman, 975 F.2d 669, 672 (9th Cir. 1992) (precedent not controlling on issue not presented to prior panel), cert. denied, 113 S.Ct. 1611, 123 L.Ed.2d 172; United States v. Faulkner, 952 F.2d 1066, 1071 n.3 (9th Cir. 1991) (same); DeRobles v. INS, 58 F.3d 1355 (9th Cir. 1995).)
4 INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G).
5 INA § 101(a)(43)(R), 8 U.S.C. § 1101(a)(43)(R).
6 INA § 101(a)(43)(R), 8 U.S.C. § 1101(a)(43)(R).
7 INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F).
8 INA § 101(a)(43)(P), 8 U.S.C. § 1101(a)(43)(P).
12 INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G).
13 INA § 101(a)(43)(S), 8 U.S.C. § 1101(a)(43)(S).
14 INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G).
15 INA § 101(a)(43)(R), 8 U.S.C. § 1101(a)(43)(R).
16 This same argument can be made with respect to the six-month sentence imposed requirement of the Petty Offense Exception to moral turpitude inadmissibility. INA § 212(a)(2)(A)(ii)(II), 8 U.S.C. § 1182(a)(2)(A)(ii)(II).