(B)  Original and Later Custody Sentences are Added Together.  The original custody sentence is generally added to the additional probation violation custody sentence to reach a total sentence of imprisonment imposed for the offense of conviction.[142]  If an initial sentence to imprisonment is imposed, and the noncitizen is placed on probation, followed by a probation or parole violation and a second sentence to imprisonment, immigration law requires adding the initial and second sentences together to come up with an aggregate sentence imposed for the single offense of conviction.[143] 

 

                For example, if the client avoids an aggravated felony at the time of the original sentence by receiving nine months custody ordered as a condition of probation, and is found to have violated probation, the conviction (if it is one of those listed for which a one-year sentence imposed converts it to an aggravated felony conviction) will become an aggravated felony conviction if the client receives a new order of serving an additional three months in custody for the probation violation, since now the total sentence ordered for this conviction is one year.

 

                To avoid adverse immigration consequences based on the total custody sentence ordered by the court, counsel must ensure that the new probation violation sentence, when added to the original custody sentence, does not trigger adverse immigration consequences.

[142] Matter of Piroglu, 17 I. & N. Dec. 578 (BIA 1980) (confinement arising from violation of probation may constitute a bar under INA § 101(f)(7), 8 U.S.C. § 1101(f)(7)).

[143] E.g., United States v. Jimenez, 258 F.3d 1120 (9th Cir. 2001) (noncitizen defendant originally sentenced to probation and later sentenced to two years imprisonment for violation of probation had been convicted of an aggravated felony based on the second term of imprisonment imposed); see also Matter of CP, 8 I. & N. Dec. 504 (BIA 1959); Velez-Lozano v. INS, 463 F.2d 1305 (D.C. Cir. 1972); United States ex rel. Fells v. Garfinkel, 158 F.Supp. 524 (W.D. Pa. 1957); Matter of M, 6 1. & N. Dec. 346 (BIA 1954).

Eleventh Circuit

AGGRAVATED FELONY - SENTENCE.JUDICIAL REVIEW - RES JUDICATA
Singh v. US Attorney Gen., __ F.3d __ (11th Cir. Dec. 31, 2008) (respondent was initially convicted of robbery and sentenced to less than 365 days, he was charged with deportability based on two crimes of moral turpitude, but was granted cancellation of removal, respondent then violated probation and was sentenced to 6 years imprisonment, the DHS brought new proceedings charging the same robbery conviction was an aggravated felon; this was not barred by res judicata, because the probation violation made the offense an aggravated felony, and cancellation of removal only works to avoid being removed on the basis of the current charges, but not any subsequent proceeding).