(A)  Basic Rules.  For immigration purposes, 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” will be counted as the term of the sentence.[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 INS would not consider the suspended portion as constituting part of a sentence imposed for immigration purposes.[2]

 

“Sentence imposed” is the amount of custody time ordered by a court as part of a criminal sentence for a criminal conviction.[3]  This can be either as part of a judgment, or as a condition of probation.

 

If the client receives no court-ordered prison sentence (even if execution is suspended), and no custody time is ordered as a condition of probation, the court has not ordered any sentence of imprisonment, and there is no “sentence imposed” for purposes of creating an aggravated felony conviction.[4]  This would be a safe haven sentence for those offenses requiring a one-year sentence to be imposed before they would constitute aggravated felonies.  See § 7.32, supra.

 

If the person was ordered to serve six months in custody as a condition of probation and was released from custody after only four months, because of conduct credits, early release, or the like, the courts will still consider that the sentencing court ordered service of a six-month sentence for immigration purposes.[5]  In 1996, Congress specifically overruled cases in which the BIA had held that custody imposed as a condition of probation was not a sentence imposed for this purposes.[6]

 

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

[200] See D. Kesselbrenner & L. Rosenberg, Immigration Law And Crimes § 6:5 (2003).

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

[202] It is true that the statute states that a sentence includes “the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.”  INA § 101(a)(48)(B), 8 U.S.C. § 1101(a)(48)(B).  However, if no custody at all is ordered as part of the sentence, there is no confinement or incarceration to be computed as part of the sentence.  There may still be custody ordered as a condition of probation, even if no prison sentence is ordered, which gives meaning to the phrase in the statute.  The bottom line, however, is that the sentence imposed includes only the incarceration that is “ordered by a court of law . . . .”  Ibid. (emphasis supplied). 

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

[204] See H.R. Conf. Rep. No. 828, 104th Cong., 2d Sess. (1996), reprinted in 142 Cong. Rec. H10899 (daily ed. Sept. 24, 1996), overruling Matter of Esposito, 21 I. & N. Dec.1 (BIA 1995); Matter of Castro, 19 I. & N. Dec. 692 (BIA 1988).  This also is the definition of sentence imposed under the U.S. Sentencing Guidelines in illegal re-entry cases. See United States v. Hernandez-Valdovinos, 352 F.3d 1243 (9th Cir. 2003).

BIA

SENTENCE - DEFINITION - FEES ARE PUNISHMENT
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."

First Circuit

CONVICTION " STATUTORY DEFINITION " FINE
Vivieros v. Holder, ___ F.3d ___ (1st Cir. Jun. 25, 2012) (Massachusetts conviction of shoplifting, under Mass. Gen. Laws ch. 266, 30A, constituted a conviction for immigration purposes, under INA 101(a)(48)(A), 8 U.S.C. (a)(48)(A), where the defendant pleaded guilty and received a fine of $250, which was later vacated, so the ultimate disposition was a guilty finding with no fines or costs, because a formal judgment of guilt had been entered and the fine was not vacated on a ground of legal invalidity). Note: This decision is mistaken. Its reasoning is as follows: The petitioner endeavors to alter this reality by insisting that the subsequent vacation of the $250 fine transmogrifies his case into one in which no sentence was ever imposed. This attempt to rewrite history cannot survive scrutiny. We previously have held that when an alien's conviction is vacated for reasons other than procedural or substantive error, he remains convicted for immigration purposes. See, e.g., Rumierz v. Gonzales, 456 F.3d 31, 39"40 (1st Cir.2006); Herrera"Inirio v. INS, 208 F.3d 299, 305 (1st Cir.2000). Other courts uniformly have hewed to this rationale. See, e.g., Dung Phan v. Holder, 667 F.3d 448, 452"53 (4th Cir.2012); Poblete Mendoza v. Holder, 606 F.3d 1137, 1141 (9th Cir.2010); Saleh v. Gonzales, 495 F.3d 17, 24"25 (2d Cir.2007); Cruz v. Att'y Gen. of U.S., 452 F.3d 240, 245 (3d Cir .2006). It necessarily follows that the vacation of a fine for reasons unrelated to procedural or substantive error does not dissipate the underlying conviction for purposes of section 1227(a)(2)(A)(ii). The petitioner's case falls within this taxonomy. There is no indication in the record that his fine for shoplifting was vacated on account of either procedural or substantive error. To the contrary, the state court docket reflects that roughly five months after the fine was imposed, it was waived on recommendation of [the] Probation Dept. When the petitioner's counsel sought clarification regarding the final disposition, the state court wrote that the docket should reflect [a] guilty finding with no fines or costs. The implication of these docket entries is pellucid: the state court, exercising clemency, waived the petitioner's fine at the behest of his probation officer. There is not the slightest hint that the waiver came about because of some legal infirmity in the shoplifting proceedings. Accordingly, the shoplifting conviction remains a formal judgment of guilt, 8 U.S.C. 1101(a)(48)(A), and endures for immigration law purposes. This is mistaken because it confuses the requirements for an effective vacatur of a conviction (a ground of legal invalidity), with an alteration in the sentence, which is effective for immigration purposes regardless of the reason for the sentence change. Compare Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), with Matter of Cota-Vargas, 23 I. & N. Dec. 849 (BIA 2005). The consistent rule, until now, has been that it is the final state sentence that is binding on the immigration authorities, regardless of any reason given for a change in the sentence.

Fourth Circuit

SENTENCE " FELONY " MAXIMUM SENTENCE
United States v. Bercian-Flores, ___ F.3d ___, 2015 WL 2239325 (4th Cir. May 14, 2015) (rejecting an argument that the top sentence of six months in pre-Booker Guidelines range controls over statutory maximum sentence in determining maximum sentence of prior felony for illegal re-entry sentencing purposes).

Fifth Circuit

AGGRAVATED FELONY " SENTENCE " PROBATED SUSPENDED SENTENCES
United States v. Rios-Cortes, 649 F.3d 332 (5th Cir. Aug. 5, 2011) (theft offense is aggravated felony where the state court imposed a probated sentence of at least one year, imposing sentence then suspending execution during the period of probation); United States v. Yanez-Huerta, 207 F.3d 746 (5th Cir. 2000); but see United States v. Landeros"Arreola, 260 F.3d 407, 410 (5th Cir. 2001) (defendants conviction no longer qualified as an aggravated felony because his sentence had been reduced to probation, rather than suspended for probation, since Colorado courts must sentence a defendant to either imprisonment or probation and may not probate a specific suspended sentence).

Sixth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - SENTENCE - SENTENCE IMPOSED IS THE SENTENCE ACTUALLY SERVED, OR THE MINIMUM SENTENCE GIVEN, WHICHEVER IS GREATER, RATHER THAN THE MAXIMUM PERIOD UNDER AN INDETERMINATE SENTENCE
Shaya v. Holder, 586 F.3d 401 (6th Cir. Nov. 9, 2009) ("for the purposes of Section 1101(a)(43)(F), indeterminate prison sentences in Michigan must be measured by the term actually . . . served or the minimum sentence given, whichever is greater, as this better incorporates the judge's discretion and determinations than the statutory maximum term."; "Because the maximum term of a Michigan sentence will always be the maximum statutory term, measuring a Michigan sentence by its maximum term would thwart Congress's intent to measure some aggravated felonies by the statutory maximum and others, like crimes of violence, by the sentence actually imposed.").

NOTE: The reasoning of this decision was based upon the particularities of Michigan indeterminate sentencing, and may or may not be applicable to other states, even within the Sixth Circuit.

Seventh Circuit

SENTENCE " CREDIT FOR TIME SERVED " DELAY IN CHARGING DENIED DEFENDANT CHANCE TO GET CREDIT FOR TIME SERVED IN PART IN IMMIGRATION DETENTION
United States v. Estrada-Mederos, ___ F.3d ___, ___, 2015 WL 1926371 (7th Cir. Apr. 29, 2015) (The sentencing judge could view the time spent under ICEs custody as the basis for granting a convicted migrant a downward departure from the sentencing range for illegal reentry.).

SENTENCE - DATE OF SENTENCE - SENTENCE DATE IS DATE OF ORAL PRONOUNCEMENT, RATHER THAN ENTRY OF JUDGMENT
United States v Evans, 92 F. 3d 540, 544 (7th Cir. 1996) (the term "sentencing" refers "to the pronouncing of sentence by the judge in open court, rather than to the subsequent recording of the sentence on a docket sheet" under statute requiring application of U.S. Sentencing Guidelines in effect "on the date the defendant is sentenced."), citing 18 U.S.C. 3553(a)(4)(A); accord, United States v Navarro-Espinosa, 30 F3d 1169, 1170 (9th Cir. 1994) ("imposition of sentence" is "a term of art that generally refers to the time at which a sentence is orally pronounced.").

Ninth Circuit

SENTENCE " CREDIT FOR TIME SERVED " TIME SPENT IN IMMIGRATION DETENTION PENDING CRIMINAL TRIAL
Zavala v. Ives, ___ F.3d ___, 2015 WL 2343637 (9th Cir. May 18, 2015) (defendants are entitled to sentencing credit for time in ICE detention pending criminal prosecution).

SENTENCE " PSYCHIATRIC PRE-TRIAL CIVIL CONFINEMENT PENDING COMPETENCE TO STAND TRIAL DETERMINATION
Corpuz v. Holder, 697 F.3d 807 (9th Cir. Aug. 31, 2012) (BIA improperly considered as the term of imprisonment the entire period noncitizen spent in psychiatric pre-trial civil confinement pending a determination of his competence to stand trial, to find noncitizen barred from relief under former INA 212(c)).

CONVICTION " LEGALLY COGNIZABLE SENTENCE OR FINAL JUDGMENT REQUIRED TO CONSTITUTE CONVICTION FOR DRUG SENTENCE PURPOSES
United States v. Suarez, 682 F.3d 1214 (9th Cir. Jun. 22, 2012) (where a plea never ripens into either a final judgment or a legally cognizable sentence, there is no final prior conviction for purposes of 21 U.S.C. 841(b)(1)(A), which increases punishment for recidivism; deferred action under California Penal Code 1000.1, et seq., is not a "final" conviction for this purpose).

CONVICTION - PUNISHMENT - CRIMINAL FINE CONSTITUTES SUFFICIENT PUNISHMENT TO CREATE A CONVICTION SO LONG AS IT IS NOT STAYED
Retuta v. Holder, 591 F.3d 1181 (9th Cir. Jan. 7, 2010) (California fine imposed as part of the sentence as a result of a plea in a criminal case constituted sufficient punishment to create a conviction, within the meaning of INA 101(a)(48)(B), 8 U.S.C. 1101(a)(48)(B): "We need not decide whether we must give deference to BIA's decision in Cabrera that costs or restitution are sufficiently punitive to be a "punishment" or "penalty," as the minute order clearly states the amount involved to be a fine."), citing Matter of Cabrera, 24 I. & N. Dec. 459, 461-462 (BIA 2008) (mandatory costs imposed in a criminal sentence were sufficient to constitute a "punishment" or "penalty," within the meaning of INA 101(a)(48)(B), 8 U.S.C. 1101(a)(48)(B), creating a conviction for immigration purposes).

CONVICTION - PUNISHMENT - CRIMINAL FINE THAT HAS BEEN STAYED DOES NOT CONSTITUTE SUFFICIENT PUNISHMENT TO CREATE A CONVICTION FOR IMMIGRATION PURPOSES
Retuta v. Holder, 591 F.3d 1181 (9th Cir. Jan. 7, 2010) (the statutory definition of "conviction," INA 101(a)(48), 8 U.S.C. 1101(a)(48), does not include criminal judgments whose only consequence is a suspended non-incarceratory sanction because in the first part of its statutory definition of conviction, INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A), "Congress intentionally omitted the exemplars [listed in Matter of Ozkok], which included several minor sanctions such as "revocation or suspension of a driver's license, deprivation of nonessential activities or privileges, or community service." [Footnote omitted.] The minute order here required less from petitioner Retuta than any of the exemplars in the Ozkok opinion that Congress chose not to adopt. In fact, the minute order requires nothing of Retuta. He suffered no loss of wealth, nor loss of liberty." In addition, in INA 101(a)(43)(B), 8 U.S.C. 1101(a)(48)(B) Congress specifically allowed suspended incarceration to qualify as sufficient punishment to create a conviction, but did not do so for a suspended fine.).

CONVICTION - PUNISHMENT - CRIMINAL FINE CONSTITUTES SUFFICIENT PUNISHMENT TO CREATE A CONVICTION SO LONG AS IT IS NOT STAYED
Retuta v. Holder, 591 F.3d 1181 (9th Cir. Jan. 7, 2010) (California fine imposed as part of the sentence as a result of a plea in a criminal case constituted sufficient punishment to create a conviction, within the meaning of INA 101(a)(48)(B), 8 U.S.C. 1101(a)(48)(B): "We need not decide whether we must give deference to BIA's decision in Cabrera that costs or restitution are sufficiently punitive to be a "punishment" or "penalty," as the minute order clearly states the amount involved to be a fine."), citing Matter of Cabrera, 24 I. & N. Dec. 459, 461-462 (BIA 2008) (mandatory costs imposed in a criminal sentence were sufficient to constitute a "punishment" or "penalty," within the meaning of INA 101(a)(48)(B), 8 U.S.C. 1101(a)(48)(B), creating a conviction for immigration purposes).

SENTENCE - "SENTENCE IMPOSED"
United States v. Gonzales, __ F.3d __, 2007 WL 3244006 (9th Cir. Nov. 5, 2007) (en banc) (The language "term of imprisonment" in U.S.S.G. 4A1.2(c)(1) refers only to certain non-felony sentences for which the defendant actually served a period of imprisonment.), overruling United States v. Williams, 291 F.3d1180, 1195 (9th Cir. 2002); United States v. Hernandez-Hernandez, 431 F.3d 1212, 1220 (9th Cir. 2005).

Tenth Circuit

SENTENCE " SENTENCE IMPOSED
United States. v. Huyoa-Jimenez, 623 F.3d 1320 (10th Cir. Oct. 21, 2010) (when a defendant has received an entirely suspended sentence for a prior felony drug trafficking offense, no sentence is imposed, and the district court should apply the eight-level enhancement to the illegal reentry sentence for aggravated felonies under 2L1.2(b)(1)(C), instead of the twelve-level enhancement for prior felony drug trafficking convictions for which the sentence imposed was 13 months or less under U.S.S.G. 2L1.2(b)(1)(B)); accord, United States v. Rodriguez-Parra, 581 F.3d 227, 229-30 (5th Cir. 2009) (concluding it was error but not plain error to apply a twelve-level enhancement to a defendant whose entire sentence was suspended); United States v. Alvarez-Hernandez, 478 F.3d 1060, 1066-67 (9th Cir. 2007) (concluding a defendant whose entire sentence for a prior drug trafficking conviction was suspended should receive the eight-level enhancement).

SENTENCE " DEFINITION OF SENTENCE IMPOSED
United States v. Rendon-Alamo, 621 F.3d 1307 (10th Cir. Oct. 19, 2010) (affirming illegal reentry sentence, where in 2003, the Sentencing Commission added a commentary to U.S.S.G. 2L1.2 defining the term "sentence imposed" to "include[] any term of imprisonment given upon revocation of probation, parole, or supervised release," and to "include" means "[t]o contain as a member of an aggregate").

Eleventh Circuit

SENTENCE - SENTENCE IMPOSED
Hernandez v. U.S. Atty Gen., __ F.3d __, 2008 WL 160265 (11th Cir. Jan. 18, 2008) (twelve month suspended sentence, and one year probation, is a sentence imposed of one year, even if probation is later revoked and the defendant required to serve 22 days in jail).

Other

SENTENCE " IMPRISONMENT INCLUDES WORK RELEASE
The common meaning of imprisonment is incarceration in a prison, jail, or other penal institution, including work furlough from a custody sentence. See, e.g., United States v. Miller, 547 F.3d 1207, 1213 (9th Cir. 2008) (incarceration in county jail work release program constituted part of defendants term of imprisonment where defendant remained under the authority of the Bureau of Prisons).

CRIMINAL DEFENSE OF IMMIGRANTS " SENTENCE - SUSPENDED SENTENCES
Al-Amyn Sumar, PRACTICE ADVISORY, Understanding and Mitigating the Effect of Suspended Sentences, discusses the immigration consequences of suspended sentences, provides background about the governing statutory framework and case law, and suggests strategies for softening their potential impact. http://xa.yimg.com/kq/groups/6503708/904649546/name/Practice%20Advisory_Suspended%20Sentences_%206-04.pdf

CRIM DEF CORRECTION RE CONCURRENT SENTENCE AGGREGATION
At (B)(6): Delete last sentence. Add the following: Concurrent sentences cannot be aggregated for the purpose of finding a noncitizen falls within the multiple-conviction ground of inadmissibility. (FN: INA 212(a)(2)(B), 8 U.S.C. 1182(a)(2)(B). Matter of Fernandez, 14 I. & N. Dec. 24 (BIA 1972).) See 18.15, infra. Counsel can argue that concurrent sentences also may not be aggravated for other immigration purposes. See 10.70, infra.