(B)  Domestic Violence Protection Order Violation.  There is one ground of deportation, however, that may be triggered by probation violation proceedings.  In 1996, Congress created a new, very broad ground of deportation for those, including juveniles, who suffer court findings of violation of a family-violence protective order.[138]  A person becomes deportable whom a civil or criminal court has found to have violated a domestic violence protective order, even without a criminal conviction.  Immigration authorities might allege a noncitizen was deportable under this ground of deportation if (a) the probation conditions of the original conviction included domestic violence protection order provisions, (b) the defendant was charged with violating probation by violating those conditions, and (c), the court found the defendant had so violated probation.  In defending an allegation of probation violation, counsel should carefully check to ensure that this domestic violence protection order violation ground of deportation is not triggered by the disposition or court finding.  See § § 22.33-22.40, infra.

[138] See INA § 237(a)(2)(E)(ii), 8 U.S.C. § 1227(a)(2)(E)(ii).

Eighth Circuit

SENTENCE - SUSPENDED SENTENCE
United States v. Gomez-Leon, 545 F.3d 777 (9th Cir. Sept. 24, 2008) ("For purposes of U.S.S.G. 2L1.2(b), a "sentence imposed" does not include any part of a sentence that has been suspended. United States v. Moreno-Cisneros, 319 F.3d 456, 458 (9th Cir.2003) (interpreting U.S.S.G. 2L1.2 cmt. 1(A)(iv) (2001), having materially the same text as current 4A1.2(b)(2), which is incorporated by reference into current 2L1.2, see 2L1.2 cmt. 1(B)(vii)). It does include both a sentence originally imposed, but not suspended, and any additional sentence of incarceration ordered as a result of a probation violation. Id.").

Ninth Circuit

SENTENCE - PROBATION VIOLATION SENTENCE IS ADDED TO ORIGINAL SENTENCE FOR GUIDELINES PURPOSES
United States v. Gomez-Leon, 545 F.3d 777 (9th Cir. Sept. 24, 2008) (to determine whether a sentence of 13 months was imposed, in assessing an illegal reentry sentence enhancement under U.S.S.G. 2L1.2(b)(1)(A)(I) for a drug trafficking conviction, the court includes the original sentence plus any additional sentence imposed on account of a probation violation), citing United States v. Moreno-Cisneros, 319 F.3d 456, 458 (9th Cir. 2003).

SENTENCE - CALIFORNIA PROBATION VIOLATION SENTENCE OF 365 DAYS INCLUDES PRIOR CREDIT FOR TIME SERVED UNLESS RECORD OF CONVICTION AFFIRMATIVELY SHOWS DEFENDANT CONSENTED TO SERVING A TOTAL SENTENCE IN LOCAL CUSTODY IN EXCESS OF 365 DAYS
United States v. Gomez-Leon, 545 F.3d 777 (9th Cir. Sept. 24, 2008) (to determine whether a sentence of 13 months was imposed, in assessing an illegal reentry sentence enhancement under U.S.S.G. 2L1.2(b)(1)(A)(I) for a drug trafficking conviction, the record of conviction must affirmatively show the defendant consented to receiving a probation violation sentence of 365 days in excess of the original sentence served, or else the 365-day probation violation sentence will be construed as including the original sentence, since California Penal Code 19.2 prohibits a court from imposing a local custody sentence in excess of 365 days), citing People v. Johnson, 82 Cal.App.3d 183, 147 Cal.Rptr. 55, 58 (Ct.App.1978) (providing that a California trial court can impose up to 365 days of jail time after a probation violation, if the defendant consents, even if the jail time imposed as an original condition of probation was 365 days).

SENTENCE - PROBATION VIOLATION
United States v. Gomez-Leon, 545 F.3d 777 (9th Cir. Sept. 24, 2008) ("For purposes of U.S.S.G. 2L1.2(b), a "sentence imposed" does not include any part of a sentence that has been suspended. United States v. Moreno-Cisneros, 319 F.3d 456, 458 (9th Cir.2003) (interpreting U.S.S.G. 2L1.2 cmt. 1(A)(iv) (2001), having materially the same text as current 4A1.2(b)(2), which is incorporated by reference into current 2L1.2, see 2L1.2 cmt. 1(B)(vii)). It does include both a sentence originally imposed, but not suspended, and any additional sentence of incarceration ordered as a result of a probation violation. Id.").

CRIM DEF - SENTENCE - PROBATION CONDITION - CONDITION REQUIRING DEFENDANT TO REPORT UPON REENTRY HELD VALID
United States v. Barsumyan, 517 F.3d 1154 (9th Cir. Feb. 28, 2008) (probation condition that if noncitizen is deported and reenters the country, he must report to the United States Probation Office held valid).

Eleventh Circuit

SENTENCE - PROBATION VIOLATION
Singh v. U.S. Atty. Gen., ___ F.3d ___, ___, 2009 WL 604370 (11th Cir. Mar. 10, 2009) (per curiam) (rejecting argument that when a defendant violates his probation or community control, he is not then incarcerated for the underlying conviction, but only for the violation, so new sentence of one year or more triggers aggravated felony ground of deportation).

Other

CONVICTION " PROBATION VIOLATION " VIOLATION DOES NOT RESULT IN A NEW CONVICTION BUT A NEW SENTENCE FOR THE ORIGINAL CONVICTION
INA 101(a)(48)(A) (statutory definition of conviction); United States v. Hidalgo-Macias, 300 F.3d 281, 285 (2d Cir. 2002) (rejecting the argument that a one-year sentence on a violation of probation was a separate conviction from the conviction for the underlying offense, and holding that the probation violation did not make the underlying offense a crime of violence aggravated felony: "the imposition of a sentence of imprisonment following revocation of probation [in NY] is a modification of the original sentence"); In re Ahmed, 2005 WL 3952705 (Aug. 22, 2005) (unpublished) ("a [New York] probation violation is not -- in the context of a probation revocation hearing -- deemed a crime from which a discrete sentence may flow."), aff'd, Ahmed v. Attorney General of U.S., 212 Fed. Appx. 133 (3rd Cir. Jan 8, 2007) (unpublished); see Darvin M. v. Jacobs, 509 N.E.2d 336, 337 (N.Y. 1987) ("A violation of probation giving rise to revocation proceedings is not a 'crime' or 'offense' which . . . must be prosecuted by a District Attorney. . . . Its purpose is to determine if defendant's subsequent acts violate the conditions of the original sentence not whether the acts constitute a crime."); NY Criminal Procedure Law 1.20(16), 1.20(18), 410.10, 410.30, 410.70 (a New York violation of probation is merely a further "criminal proceeding" pursuant to the original "criminal action" and is not a new "criminal action").