Criminal Defense of Immigrants


§ 7.20 d. Imposition of Sentence

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Matter of Cabrera, 24 I. & N. Dec. 459 (BIA Feb. 27, 2008) (costs and surcharges imposed in Florida deferred adjudication proceeding constitute a form of "punishment" or "penalty" for purposes of establishing that a noncitizen has suffered a "conviction" within the meaning of INA 101(a)(48)(A)). Note: the court here sought to establish a national standard (rather than relying on Florida state law), and includes amounts paid in restitution as a cost equaling "punishment."

Singh v. Holder, 568 F.3d 525 (5th Cir. May 14, 2009) (under INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A), "formal judgment of guilt" is defined by reference to Federal Rule of Criminal Procedure 32(k)(1), which provides that "[i]n the judgment of conviction, the court must set forth the plea, the jury verdict or the court's findings, the adjudication, and the sentence."); Puello v. Bureau of Citizenship and Immigration Servs., 511 F.3d 324, 329 (2d Cir. 2007); Perez v. Elwood, 294 F.3d 552, 562 (3d Cir. 2002) (same).

First Circuit

De Vega v. Gonzales, __ F.3d __, 2007 WL 2696489 (1st Cir. Sept. 17, 2007) (an order to pay restitution was sufficient to meet "punishment" requirement of INA 101(a)(48)(A)(ii), 8 U.S.C. 1101(a)(48)(A)(ii), and the disposition therefore constituted a "conviction" under INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A) for immigration purposes).
De Vega v. Gonzales, 503 F.3d 45, 47 (1st Cir. 2007) (alien admitted to facts sufficient for a finding of guilt and court issued a continuance without a finding of guilt, contingent on payment of restitution, which constituted punishment, and the disposition therefore constituted a conviction under INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A)). NOTE: This case is very poorly reasoned. The courts discussion was as follows: Second, de Vega claims that she was not convicted of an aggravated felony, and thus the IJ erred in finding her ineligible for cancellation of removal, a form of relief available only to LPRs who have not been convicted of such a crime. See 8 U.S.C. 1229b(a)(3) (stating that the Attorney General may grant cancellation of removal only if the alien has not been convicted of any aggravated felony). She contends that there was no conviction at all, and, alternatively, that if there were a conviction, it was not for an aggravated felony. We think it clear that de Vega was convicted within the meaning of the INA. IIRIRA specifies the criteria necessary for a conviction: The term conviction means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where-(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilty, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed. Id. 1101(a)(48)(A). There is no dispute that she admitted to facts sufficient for a finding of guilt. However, she claims that the order requiring her to pay restitution did not constitute a form of punishment, penalty, or restraint on [her] liberty. Id. Although the IJ and the BIA implicitly rejected de Vega's argument on this point, neither provided an explanation. We conclude that the particular order in this case was plainly a punishment or penalty. De Vega was required to pay a large sum of money. If she failed to make her payments, her admission could ripen into a guilty plea and she would be subject to further punishment. See Commonwealth v. Aboulmal, No. 02-P-830, 2003 WL 22309058, at *2 (Mass.App.Ct.) (An admission to sufficient facts may result ... in a continuance without a finding to a specific date, conditioned on compliance with specific terms. In the event of a violation of those terms, the admission remains and may ripen into an adjudication of guilt and imposition of sentence.). Under Massachusetts law, therefore, a continuation, based on an admission of facts sufficient for a finding of guilt and conditioned on payment of restitution, is treated as the legal equivalent of a guilty plea and probationary sentence. Id. (citing Commonwealth v. Villalobos, 437 Mass. 797, 777 N.E.2d 116, 119-20 (2002)). Based on the facts of this case and Massachusetts law, we conclude that the restitution order was punitive, and we find no error in the agency's conclusion that, under the INA definition, de Vega was convicted. (De Vega v. Gonzales, 503 F.3d 45, 48-49 (1st Cir.2007)). This reasoning suffers from at least two serious defects. First, it relies on Massachusetts state law. This is an error. It is well-established that the question of the existence of a conviction depends on federal immigration law, rather than state law. The Full Faith and Credit doctrine does not require the immigration courts to follow state definitions of what constitutes a conviction for immigration purposes. This issue is determined by reference to the statutory definition of conviction. INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A). Thus, the District Court for the Northern District of Texas rejected a claim that because Texas law did not consider a deferred adjudication to be a conviction, the Full Faith & Credit statute required the federal court to accept this state rule. Bui v. Ashcroft, 2003 WL 251929 at p. *3 (N.D. Tex. 2003) (unpublished). N. TOOBY & J. ROLLIN, AGGRAVATED FELONIES 3.31(G), p. 189 (2006). Second, it is well-established that the purpose of restitution is to make the victim whole, rather than to punish the defendant. Since the purpose of restitution is rehabilitative, rather than punitive, it should not be considered to be punishment, penalty, or restraint within the meaning of the federal immigration statutory definition of conviction.


There is some tension between the rule that the original sentence is added to probation-violation sentences, on the one hand, and the Song/Cota BIA cases on sentence modification that state that it is the final sentence that governs for purposes of assessing the immigration consequences of a judgment. Matter of Song, 23 I. & N. Dec. 173 (BIA 2001); Matter of Cota-Vargas, 23 I. & N. Dec. 849 (BIA 2005). If state probation violation procedure provides that a defendant receives credit for time served originally against a probation violation sentence, then the original and probation violation sentences would not be added together. For example, if the defendant received a six-month sentence originally, then a nine-month sentence on a violation of probation, s/he would only have to serve three of the nine months probation violation sentence. Under those circumstances, there would be an argument under Song that the final sentence for the offense is nine months. Many, if not most states, however, do not have such a rule. For example, in New York, the probation violation sentence imposed is in addition to the original jail term. New York Penal L. 60.01(4). The same is true in California, unless the court orders otherwise. On a probation violation sentence, defense counsel can ask that the original sentence be vacated and replaced by the probation violation sentence, and the defendant can if necessary waive credit for time already served. Under these circumstances, the two sentences would not be added together, because the first sentence has been vacated, and only then is the second sentence imposed " each of which is by itself too short to trigger aggravated felony treatment for the conviction. As the Board stated: "we see nothing in the language or stated purpose of section 101(a)(48)(B) that would authorize us to equate a sentence that has been modified or vacated by a court ab initio with one that has merely been suspended." Matter of Song, 23 I&N Dec. 849, 852 (BIA 2001). Thanks to Isaac Wheeler.