Post-Conviction Relief for Immigrants

 

For immigration purposes, “sentence imposed” includes a period of confinement ordered by a judge for an offense, “regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.”[1]  This changed the former rule, which was that if a court suspended imposition of sentence and ordered jail time as a condition of probation, the immigration authorities would consider that to equal zero sentence imposed for immigration purposes. 

 

The rule has several aspects:

 

(1)  What counts is the formal sentence to custody ordered by the court.  If the court orders a sentence of one year in custody to be served, but the defendant actually serves only eight months because of good behavior, s/he has still received a “sentence imposed” of one year for immigration purposes, and would be deportable as an aggravated felon if the offense is on the list.

 

(2)  The duration of probation does not count as a sentence to confinement for this purpose.[2]  Thus, if the client receives imposition of sentence suspended and no custody time is ordered as a condition of three years probation, that counts as zero sentence imposed.

 

(3)  If sentence is imposed, and execution of sentence is suspended, the full sentence imposed nonetheless counts as a sentence imposed for immigration purposes.  For example, if the defendant is sentenced to three years in state prison, and execution of that sentence is suspended, and the defendant is placed on probation on condition of serving six months in county jail, that counts as a “sentence imposed” of three years.[3]

 

(4)  Obtaining treatment of the conviction as a misdemeanor under state law does not necessarily defeat consideration of the conviction as an aggravated felony if the conviction and sentence meet the definition.  In other words, conviction of an offense on the aggravated felony list, as a misdemeanor, with a sentence imposed of one year, constitutes an “aggravated felony” regardless of the fact that the offense is only a misdemeanor under state and/or federal law.[4]

 

(5)  Deferred entry of judgment, and similar programs, are ineffective to prevent consideration of a conviction as an aggravated felony, if one year of custody or more is ordered by a court after a guilty or no contest plea.[5]

 

(6)  Concurrent sentences are evaluated as the length of the longest sentence.[6]  Indeterminate sentences are counted as the maximum possible sentence.

 

Youthful Offender Sentences.  A formal commitment of a defendant to the California Youth Authority (CYA), as opposed to a commitment to the California Department of Corrections with a recommendation that the defendant be housed in CYA, does not constitute a sentence to confinement for immigration purposes.[7]  If counsel can vacate a state prison sentence, and obtain a CYA commitment instead, the new sentence will not be considered a sentence to confinement.

 

[1] INA § 101(a)(48)(B), 8 U.S.C. § 1101(a)(48)(B), as amended by IIRAIRA § 322(a)(1).

[2] This assumes no sentence to confinement is otherwise or automatically imposed when probation is granted.  In some states, such as Texas, a prison sentence is implicitly deemed imposed when probation is granted, so that implicit sentence to confinement would be considered a sentence imposed for immigration purposes.

[3] INA § 101(a)(48)(B), 8 U.S.C. § 1101(a)(48)(B).

[4] United States v. Graham, 169 F.3d 787 (3d Cir. 1999) (state misdemeanor theft conviction, with one year suspended sentence, considered “aggravated felony” under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G) for federal sentencing purposes).

[5] Matter of Punu, 22 I. & N. Dec. 224 (BIA 1998) (en banc) (INS follows will of Congress on this point, regardless of what a state legislature may say).

[6] Matter of Fernandez, 14 I. & N. Dec. 24 (BIA 1972).

[7] Matter of N, 8 I. & N. Dec. 660 (BIA 1960); cf. Matter of Goodalle, 12 I. & N. Dec. 106 (BIA 1967) (term in N.Y. State Reformatory did constitute a sentence).