(B)  The Length of the Sentence Imposed.  The current rule has several aspects:

 

                (1)  Custody Ordered by the Court.  What counts for this purpose is the formal sentence to custody ordered by the court, for a particular conviction, not the term actually served.[1]  The entire sentence imposed is the sentence for immigration purposes, regardless of the fact that the defendant will not serve all or part of the sentence.[2]  For example, 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 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.  The “sentence imposed” definition under the Guidelines is not necessarily identical.[3]  A sentence to custody qualifies for sentencing purposes whether it is a straight sentence to jail or prison, or a sentence to confinement as a condition of probation.[4]

 

                A one-year sentence which is ordered, and then imposition or execution of which is suspended, still constitutes a sentence imposed for immigration purposes.[5]  In Georgia, for example, a defendant who receives probation will also automatically receive a suspended sentence.[6]  A defendant who receives a probation sentence in Georgia will have a sentence for immigration purposes not because probation is a sentence, but because Georgia probation includes a suspended sentence of court-ordered custody. The critical question under the statute is whether the court has ordered one year or more in custody to be served, even if “imposition” or “execution” has been suspended so the immigrant need not actually serve the time at the outset.[7]

 

                (2)  Not Statutory Maximum.  The term of imprisonment refers to the actual term ordered by the court, not the statutory minimum or maximum that might have been ordered, or that could be ordered in future.[8] 

 

(3)  Indefinite Term.  A sentence with an indeterminate term is considered to be court-ordered custody equal to the maximum, even if a lesser term is actually served.[9]  Thus, an indeterminate term, with a maximum of one year or more, is considered a sentence imposed equal to the maximum that might be required to be served, even if the noncitizen was released prior to actually serving a year in custody.[10]

                In some states, an indeterminate sentence may be considered as being reduced if a court awarded credit for time served in some form.  For example, North Carolina uses indeterminate sentencing, but the statute actually reads that the maximum sentence is reduced by credits earned.  Therefore, the maximum of a 10-12 month sentence is legally reduced after the fact under the statute.  It is safest to ask the court in a post-trial order to reduce the maximum sentence, which will count in and of itself as a valid sentence reduction.  See § 11.10, infra.  If that is not possible, the argument is still very strong that the statute reduces the maximum which could then fall below the sentence necessary to trigger adverse immigration consequences.[11]

 

                (4)  One Year Defined.  A sentence of “at least one year” means a sentence of 365 days or more, rather than requiring a “natural or lunar” year of 365 days plus some hours,[12] or a 366-day year containing Leap Year Day for certain years.  There is generally no “leap year defense.”[13]  In Oregon, however, a court found 366 days necessary to constitute a year.[14]

 

                (5)  Suspended Sentence.  If sentence is imposed, and execution of sentence is suspended, the full sentence imposed nonetheless counts as a sentence imposed for immigration purposes.[15]  For example, a defendant who is sentenced to three years in state prison, execution of that sentence is suspended, and is placed on probation on condition of serving six months in county jail, has a “sentence imposed” of three years.  The definition of a “suspended sentence” is governed by federal law and includes all parts of a sentence of imprisonment that are ordered but not served, irrespective of the label attached under state law.[16]  For example, where Georgia courts had ordered service of a five-year sentence, but allowed all but eight months to be served on probation, the court of appeals held that the balance had been suspended, which therefore still counted as a sentence of more than one year.[17]  An illegal re-entry sentence enhancement for a prior aggravated felony conviction[18] applies even if execution of the sentence for the prior crime was suspended.[19]

 

                (6)  Concurrent Sentences.  Concurrent sentences are evaluated as the length of the longest sentence.[20]  For purposes of assessing the sentence ordered by the court for a given conviction, only the sentence ordered for the particular offense or count of conviction counts.  Concurrent (or consecutive) sentences ordered on other cases or other counts within the same case do not count as part of the sentence imposed for the count in question.[21]  (The rule is different for immigration rules in which different sentences in different cases or counts are aggregated together.  See § 10.70, infra.)

 

                (7)  Probation or Parole Length Irrelevant.  The duration of probation does not count as a sentence to confinement for this purpose.[22]  Similarly, the length of parole does not count as part of the sentence to confinement ordered by the court.[23]  Custody time imposed by a court as a sentence for the offense of conviction, as a result of a probation violation, counts as part of the sentence imposed for the offense.  See § 10.63(B)(8), infra.  Custody time imposed by a parole board, however, for violation of parole, is not imposed by a court and thus does not count as part of the sentence ordered by a court for immigration purposes.[24]

 

                Sometimes, under state law, a probationary sentence means the court has in fact ordered a state prison sentence to be served, but execution of that sentence is in effect suspended during the probationary period.  Under those circumstances, the probation itself does not constitute a sentence, but the suspended prison sentence does.  Counsel should carefully evaluate a probation order to see whether, underlying it, is an explicit or implicit court order of custody.  While probation imposed under the law of most states does not constitute a sentence, Texas, Georgia, and perhaps some other states have a kind of probation that may amount to a sentence imposed for immigration purposes.  In Texas there appear to be at least two types of probation: one that is a suspended sentence under immigration law, and one that is not.  Counsel should carefully review the disposition and obtain expert assistance if necessary.

 

                (8)  Probation Violation Sentences.  Any additional time in custody ordered by a court as an additional sentence as a result of a probation or parole violation is added to the custody time originally ordered, to calculate the length of the “sentence imposed” for immigration purposes.[25]  For example, a defendant initially received a sentence of less than one year, but then violated probation and was sentenced to an additional term of imprisonment.  If the extra term, when added to the original term, brings the total sentence imposed over one year, the conviction will be considered an aggravated felony where the offense is on the list.[26]  To enhance an illegal re-entry sentence, the additional custody imposed as a result of the probation violation must have been imposed prior to the illegal re-entry for it to count toward the one-year sentence imposed.[27]  Obviously, a sentence imposed after a probation violation, standing alone, may be long enough to trigger the immigration consequence even if the initial sentence was not or no custody sentence was originally imposed.[28]

 

                Defense counsel at the probation violation plea bargaining and sentencing stages has a number of tactics available to attempt to avoid triggering a certain total sentence imposed for a conviction.  See § 10.49, supra.

 

                (9)  Parole Violation Sentences.  Parole violation sentences are somewhat different.  In the probation violation context, the court orders an original sentence and then, after a probation violation, the court orders a second sentence imposed.  Thus, the immigration authorities add the original custody to any later custody sentences to obtain the total custody ordered by the court for the conviction.  Parole violation custody sentences, however, are generally not ordered by a court.  Instead, they are typically ordered by a parole board, giving rise to an excellent argument that they do not qualify within the statutory definition of sentence,[29] since they are not ordered by the court.

 

(10)  Youthful Offender and Juvenile Sentences.  A commitment under the former Federal Youth Corrections Act[30] or under a comparable state statute[31] is not considered a sentence to confinement.[32]  Sentencing after an adjudication in juvenile proceedings is also not a sentence imposed as a result of a conviction, and does not trigger immigration consequences, since the juvenile adjudication does not constitute a conviction.  See § 7.23, supra.  Noncitizens who committed offenses while they were juveniles under 18, who were tried or pleaded as adults and who were committed to a young offender facility such as the California Youth Authority have been held not to have been “sentenced to confinement” even if the Youth Authority elects to house them in adult jail or prison.  However, if the Youth Authority later returns the noncitizen to court for sentencing to jail or prison, and an adult court sentence is imposed, that adult sentence will constitute a “sentence to confinement” for immigration purposes.[33]

 

                (11)  Sentence Enhancement Sentences.  A recidivist sentence enhancement does not result in a sentence ordered by the court for the offense of conviction.  Instead, it is ordered because a sentence enhancement, based on a prior conviction, is found true.  Thus, there is an excellent argument that a sentence imposed on account of a sentence enhancement, as opposed to the conviction for the offense itself, does not constitute part of the sentence ordered for the criminal offense of which the defendant was convicted, and so cannot alter the essential elements of the offense of conviction for the purpose of determining whether a conviction constitutes a deportable offense.  The Ninth Circuit has adopted this reasoning, holding that a sentence imposed upon a recidivist sentencing enhancement or recidivist treatment therefore does not count towards the sentence for immigration purposes.[34] 

Note, however, that the government might challenge the Corona-Sanchez rule based on dictum in a footnote in the December 5, 2006 Supreme Court decision Lopez v. Gonzales.[35]  See § 10.58(B)(2), supra.  The Seventh Circuit counts a felony as a felony even though it is a felony solely because of a recidivist sentence enhancement.[36] On the other hand, even in the Ninth Circuit, a non-recidivist based sentence enhancement, for example, one based on the defendant’s conduct, can transform a conviction into a felony conviction and increase the maximum possible punishment.[37] 

[205] United States v. Drummond, 240 F.3d 1333 (11th Cir. 2001); United States v. Maldonado-Ramirez, 216 F.3d 940, 944 (11th Cir. 2000); United States v. Guzman-Bera, 216 F.3d 1019, 1020 (11th Cir. 2000).  Other immigration consequences are triggered by the length of the sentence that is actually served.  See § 10.73, infra.

[2] This was the rule even before the 1996 IIRAIRA amendment, with some variations.  See, e.g., Velez-Lozano v. INS, 463 F.2d 1305 (D.C. Cir. 1972); Matter of M., 6 I. & N. Dec. 346 (BIA 1954).  The State Department formerly used a different rule in issuing visas.  For purposes of the ground of inadmissibility relating to two convictions resulting in five years imprisonment, the State Department held that suspended execution of sentence is not a sentence. “A sentence to confinement that has been suspended by a court of competent jurisdiction is not one which has been actually ‘imposed’ within the meaning of INA § 212(a)(2)(B).”  22 CFR § 40.22(b) (July 2, 1991).  The State Department would not be able to apply this definition under the current statute.

[206] See United States v. Benitez-Perez, 367 F.3d 1200 (9th Cir. May 20, 2004) (“sentence imposed” for purposes of U.S.S.G. § 2L1.2(b)(1) means the actual sentence imposed by the judge; parole [unlike probation] is not to be considered in determination of the “actual sentence imposed”).

[207] United States v. Mendoza-Morales, 347 F.3d 772 (9th Cir. Oct. 21, 2003) (jail as a condition of probation counts as a prior sentence of imprisonment under the sentencing guidelines, notwithstanding that California law deems such imprisonment to be rehabilitative rather than punitive).

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

[209] See United States v. Ayala-Gomez, 255 F.3d 1314 (11th Cir. 2001).

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

[211] United States v. Pacheco, 225 F.3d 148, 154 (2d Cir. 2000); see also United States v. Guzman-Bera, 216 F.3d 1019, 1020 (11th Cir. 2000) (per curiam); Alberto-Gonzalez v. INS, 215 F.3d 906, 910 (9th Cir. 2000); United States v. Graham, 169 F.3d 787, 790-91 (3d Cir. 1999).

[212] United States v. Frias, 338 F.3d 206 (3d Cir. July 30, 2003) (“sentence imposed” means the upper limit of an indeterminate sentence for purposes of U.S.S.G. § 2L1.2 sentence enhancement in illegal re-entry cases); Bovkun v. Ashcroft, 283 F.3d 166 (3d Cir. 2002) (Pennsylvania misdemeanor conviction of making terroristic threats qualified as a “crime of violence” for immigration purposes, since the maximum of the 11 to 23 month sentence imposed was one year or more); Nguyen v. INS, 53 F.3d 310, 311 (10th Cir. 1995) (affirming agency determination that a sentence of 3-8 years constituted a sentence of at least five years for purposes of INA § 101(a)(43), 8 U.S.C. § 1101(a)(43)); see also United States v. Galicia-Delgado, 130 F.3d 518 (2d Cir. 1997); United States v. Cordova-Beraud, 90 F.3d 215, 218-20 (7th Cir. 1996) (upholding U.S.S.G. § 2L1.2(b)(2) enhancement on the ground that, in light of § 4A1.2’s definition of “sentence of imprisonment,” an indeterminate sentence of 2-10 years constituted a sentence of “at least five years”); United States v. Quinonez-Terrazas, 86 F.3d 382, 383 (5th Cir. 1996) (upholding U.S.S.G. § 2L1.2(b)(2) enhancement on the ground that, in light of § 4A1.2’s definition of “sentence of imprisonment” and the “common law definition” of an indeterminate sentence, a sentence of 4-10 years constituted a sentence of at least five years); United States v. Vasquez-Balandran, 76 F.3d 648 (5th Cir. 1996) (treating suspended imposition of sentence under Texas law as a sentence imposed for purposes of aggravated felony enhancement in illegal re-entry case, since under Texas procedure a prison sentence of one year or more was in fact ordered as part of the procedure); United States v. Amaya-Benitez, 69 F.3d 1243 (2d Cir. 1995) (accepting upper limit of indeterminate sentence as the measure of the sentence imposed for purposes of aggravated felony sentence enhancement in an illegal re-entry case).  See Brett v. INS, 386 F.2d 439 (2d Cir. 1967) (three-year indeterminate term and actual service of more than one year considered sentence imposed of one year or more); Dentico v. Esperdy, 280 F.2d 71 (2d Cir. 1960); Matter of SS, 21 I. & N. Dec. 900 (BIA 1997); Matter of D, 20 I. & N. Dec. 827 (BIA 1994) (Massachusetts indeterminate sentence considered equal to a sentence for the maximum term imposed); Matter of Goodalle, 12 I. & N. Dec. 106 (BIA 1967) (indeterminate term in state reformatory, with a statutory maximum of five years, and more than one year actually served, considered sentence imposed of one year or more); Matter of Chen, 10 I. & N. Dec. 671 (BIA 1964) (indeterminate sentence with maximum term fixed by statute); Matter of Ohnhauser, 10 I. & N. Dec. 501 (BIA 1964) (California indeterminate sentence of six months to 14 years); Matter of S, 3 I. & N. Dec. 460 (BIA 1948) (15-month sentence, on three counts, where court failed to link the sentence with any particular count, considered a sentence of one year or more).

[213] United States v. Frias, 338 F.3d 206 (3d Cir. July 30, 2003) (“sentence imposed” means the upper limit of an indeterminate sentence for purposes of U.S.S.G. § 2L1.2 sentence enhancement in illegal re-entry cases); Burr v. Edgar, 292 F.2d 593 (9th Cir. 1961) (allowable deductions for good behavior do not alter the fact that sentence imposed was for one year); Petsche v. Clingan, 273 F.2d 688 (10th Cir. 1960); Kiobge v. Day, 42 F.2d 716 (S.D.N.Y. 1929); Matter of S, 8 I. & N. Dec. 344 (BIA 1959) (sentence of one year, with provision for parole after six months, considered sentence of one year).  Contra, Holzapfel v. Wyrsch, 157 F.Supp. 43 (D.N.J. 1957), aff’d on other grounds, 259 F.2d 890 (3d Cir. 1958) (indeterminate sentence to a maximum of five years did not constitute a sentence of one year or more under pre-1996 law, since parole could be granted immediately).

[214] Thanks to Jennifer Foster for this analysis.

[215] Matsuk v. INS, 247 F.3d 999 (9th Cir. 2001).

[216] Lagandaon v. Ashcroft, 383 F.3d 983, n.10 (9th Cir. Sept. 9, 2004) (“Of course, in leap years, one additional day would be added.  See 2 BLACKSTONE, supra, at 140 (“The increasing day in the leap-year, together with the preceding day, shall be accounted for one day only.”)).

[217] Neff v. Jackson County, 187 Or. App 402 (2003) (Oregon court held that 366 days is a year in the context of a whistleblower lawsuit filed 366 days after a one-year statute of limitations started to run, holding the lawsuit was timely filed). Thanks to Brian Conry.

[218] See United States v. Echavarria-Escobar, 270 F.3d 1265 (9th Cir. 2001) (citing United States v. Christopher, 239 F.3d 1191, 1194 (11th Cir. 2001) (the defendant’s theft offense constituted an “aggravated felony” because “[t]he state court sentenced [defendant] to 12 months incarceration on his theft offense.  Since the sentence imposed is the controlling factor, [defendant’s] theft offense qualifies as an ‘aggravated felony.’  The fact that the state court suspended his sentence is irrelevant.”); Sousa v. INS, 226 F.3d 28, 33 n.4 (1st Cir. 2000) (“The fact that [the defendant’s] sentence was initially suspended does not matter” because he was sentenced by a court of law for a “crime of violence” to more than one year.  Thus, the defendant’s crime constituted an aggravated felony for sentencing purposes); United States v. Pacheco, 225 F.3d 148, 154 (2d Cir. 2000) (“[I]t is immaterial that [the defendant’s] sentence was suspended” in determining, for purposes of sentencing a defendant for illegal re-entry, whether a prior offense has a term of imprisonment of at least one year), cert. denied, 533 U.S. 904, 121 S.Ct. 2246 (2001); United States v. Marquez-Gallegos, 217 F.3d 1267, 1270 (10th Cir.), cert. denied, 531 U.S. 905, 121 S.Ct. 246 (2000) (“[T]he fact that [the defendant’s] three-year sentence was suspended is irrelevant” in determining, for purposes of sentencing a defendant for illegal re-entry, whether a prior offense has a term of imprisonment of at least one year); Lopez-Elias v. Reno, 209 F.3d 788, 791 (5th Cir. 2000), cert. denied, 531 U.S. 1069, 121 S.Ct. 757 (2001) (“That [defendant’s] four-year sentence was suspended is of no significance, for IIRAIRA makes plain that ‘[a]ny reference to a term of imprisonment or a sentence with respect to an offense is deemed to include 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.’” (citation omitted)); United States  v. Tejeda-Perez, 199 F.3d 981, 982 (8th Cir. 1999) (“A conviction is an aggravated felony within the meaning of § 2L1.2 if the defendant receives a sentence of at least one year, even if the sentence is suspended.”); United States v. Graham, 169 F.3d 787, 790-91 (3d Cir. 1999) (because the former statute defined aggravated felony as “a theft offense . . . for which the term of imprisonment imposed (regardless of any suspension of such imprisonment) is at least five years” and because Congress, when amending the statute, did not intend to change the sentence imposition requirement, but, instead, simply lowered the penalty required to make a theft violation an aggravated felony from five years to one year, the court should look at the sentence imposed rather than the sentence authorized (alteration in original)); United States v. Banda-Zamora, 178 F.3d 728, 730 (5th Cir. 1999) (relying on INA § 101(a)(48)(B), 8 U.S.C. § 1101(a)(48)(B) in holding that when a court orders a period of incarceration and then suspends it, the conviction is an aggravated felony); Matter of Castro, 19 I. & N. 692 (BIA 1988) (suspended execution of sentence is a sentence “actually imposed” for purposes of the exception to inadmissability under 8 U.S.C. § 1182(a)(2)(A)(ii)(II), INA § (a)(2)(A)(ii)(II)); Matter of Esposito, 21 I. & N. Dec.1 (BIA 1995) (suspended execution of sentence is a sentence “actually imposed” for purposes of excludability for multiple offenses pursuant to INA § 212(a)(2)(B), 8 U.S.C. § 1182(a)(2)(B), and precursor statute, INA § 212(a)(10), 8 U.S.C. § 1182(a)(10)).

[219] United States v. Ayala-Gomez, 255 F.3d 1314 (11th Cir. 2001); United States v. Vasquez-Balandran, 76 F.3d 648 (5th Cir. 1996) (refusing to honor state law treatment of probationary sentence as “assessed,” rather than “imposed,” finding that custodial sentence had in fact been imposed, but then suspended by order of probation; thus establishing custodial sentence for aggravated felony purposes); compare United States v. Herrera-Solorzano, 114 F.3d 48 (5th Cir. May 20, 1997) (“Unlike the judgment in Vasquez-Balandran, however, the judgment in the case at bar contains a reference to adult probation next to the term of confinement, which suggests that the state court may have been directly sentencing Altamirana to ten years of adult probation. That distinction carries significance because if Altamirana was placed on probation without first being sentenced to prison, his prior conviction does not constitute an aggravated felony.”).  The court in Herrera-Solorzano quoted the court in Vasquez-Balandran, supra, at 650, as stating: “Texas did (and still does) have a provision that allowed a defendant to be placed on probation (now ‘community supervision’) without first assessing a term of imprisonment.” Id., citing Tex.Code Crim.P. art. 42.12 § 5(a)).  See also United States v. Landeros-Arreola, 260 F.3d 407, 413-414 (5th Cir. July 27, 2001) (“Conversely in Landeros’s case, the court imposed a four year term of imprisonment but, thereafter, intervened and reduced the sentence imposed from one of imprisonment to one of probation. As a consequence, nothing remained of the original term of imprisonment for the court to suspend.”).

[220] United States v. Ayala-Gomez, 255 F.3d 1314 (11th Cir. 2001).

[221] INA § 101(a)(43), 8 U.S.C. § 1101(a)(43).

[222] United States v. Echavarria-Escobar, 270 F.3d 1265 (9th Cir. 2001).

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

[224] Matter of J, 6 I. & N. 562 (AG 1956) (sentences on different counts of conviction of crimes of moral turpitude are not added together to obtain a sentence in excess of one year); Matter of Fernandez, 14 I. & N. 24 (BIA 1972) (same).

[225] See United States v. Martinez-Villalva, 232 F.3d 1329, 1333 (10th Cir. 2000) (direct imposition of probationary sentence does not render offense an “aggravated felony”); United States v. Guzman-Bera, 216 F.3d 1019, 1021 (11th Cir. 2000); United States v. Banda-Zamora, 178 F.3d 728, 730 (5th Cir. 1999) (same); United States v. Gonzalez-Coronado, 419 F.3d 1090 (10th Cir. Aug. 15, 2005) (sentence directly to probation is not a sentence in excess of one year, for purposes of aggravated felony crime of violence); Matter of V, 7 I. & N. Dec. 577 (1957);  Matter of F, 1 I. & N. Dec. 343 (BIA 1942); Matter of De La Cruz, 15 I. & N. Dec. 616 (BIA 1976).  Note that some of these cases also provide that time ordered in jail as a condition of probation is not a sentence.  That is no longer the case under the 1996 enactment of the statutory definition of sentence under INA § 101(a)(48)(B), 8 U.S.C. § 1101(a)(48)(B).

[226] United States v. Benitez-Perez, 367 F.3d 1200 (9th Cir. May 20, 2004) (“sentence imposed” for purposes of U.S.S.G. § 2L1.2(b)(1) means the actual sentence imposed by the judge; parole is not to be considered in determination of the “actual sentence imposed”); United States v. Gonzalez-Coronado, 419 F.3d 1090 (10th Cir. Aug. 15, 2005) (sentence directly to probation, rather than to custody, is not a sentence in excess of one year, for purposes of aggravated felony crime of violence; despite district court error in enhancing sentence based upon aggravated felony conviction, resentencing is not necessary where defendant would have received equivalent increase because offense is a felony).

[227] See United States v. Benitez-Perez, 367 F.3d 1200 (9th Cir. May 20, 2004) (“sentence imposed” for purposes of USSG § 2L1.2(b)(1) means the actual sentence imposed by the judge; parole [unlike probation] is not to be considered in determination of the “actual sentence imposed”).

[228] United States v. Compian-Torres, 320 F.3d 514 (5th Cir. Jan. 29, 2003); United States v. Hidalgo-Macias, 300 F.3d 281 (2d Cir. 2002) (attempted burglary conviction, for which initial custodial sentence of six months of incarceration plus five years of probation was imposed, constituted “aggravated felony” warranting enhancement of sentence for illegal re-entry, where defendant violated probation, resulting in additional one-year sentence); United States v. Jimenez, 258 F.3d 1120, 1125 (9th Cir. 2001) (finding aggravated felony for sentencing purposes where initial probationary sentence was revoked and two-year custody term imposed); United States v. Ortiz-Gutierrez, 36 F.3d 80 (9th Cir. 1994); see also Matter of CP, 8 I. & N. Dec. 504 (BIA 1959); cf. United States v. Moreno-Cisneros, 319 F.3d 456 (9th Cir. Jan. 31, 2003) (increase in guideline level for prior conviction where sentence imposed was more than 13 months was proper, since in computing the length of the sentence imposed on the prior conviction, a period of incarceration imposed as a result of a probation revocation is included); United States v. Leiva-Deras, 359 F.3d 183 (2d Cir. Feb. 17, 2004) (sentence following probation violation is included in determining sentence imposed for drug offense).  See 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 I. & N. Dec. 346 (BIA 1954).

[229] Matter of CP, 8 I. & N. Dec. 504 (BIA 1959).

[230] United States v. Carrillo-Lopez, 313 F.3d 1185 (9th Cir. Dec. 20, 2002) (custody term imposed as a result of a probation violation is aggregated with original custody term to determine whether a sentence of one year or more has been imposed, so long as it is imposed prior to removal and re-entry, for purposes of enhancing sentence for illegal re-entry under United States Sentencing Guideline § 2L1.2(b)(1)(A), and INS’s use of procedure in 8 U.S.C. § 1231(a)(5) to reinstate 1996 removal order does not “reset” the relevant time period for evaluating the 1995 conviction).

[231] Matter of CP, 8 I. & N. Dec. 504 (1959); see 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 I. & N. Dec. 346 (BIA 1954).

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

[233]  Former 18 U.S.C. § § 5005-5026 were repealed by Pub. L. No. 98-473, effective October 12, 1984.  Disposition of criminal charges under the former First Offender Act, former 21 U.S.C. § 844(b), and its state counterparts, also avoids subjecting noncitizen to immigration consequences.  Congress adopted a new Federal First Offender Act at the same time it repealed the former 21 U.S.C. § 844(b).  See Pub. L. No. 98-473; 18 U.S.C. § 3607.

[234] See Matter of N, 8 I. & N. Dec. 660 (BIA 1960), overruling Matter of CR, 4 I. & N. Dec. 136 (BIA 1950); Matter of Rico, 16 I. & N. Dec. 181 (BIA 1977).  But see Matter of Goodalle, 12 I. & N. Dec. 106 (BIA 1967).

[235] Matter of V, 8 I. & N. Dec. 360 (BIA 1959); Matter of Nagy, 12 I. & N. Dec. 623 (BIA 1968).

[33] Matter of N, 8 I. & N. Dec. 660 (BIA 1960). Cf. Matter of Goodalle, 12 I. & N. Dec. 106 (BIA 1967) (term in New York State Reformatory is a “sentence to confinement.”)

[236] United States v. Ballesteros-Ruiz, 319 F.3d 1101 (9th Cir. Feb. 10, 2003) (Arizona conviction of second-offense possession of marijuana, in violation of Ariz. Rev. Stat. § § 13-901.01(A), (E), was not an aggravated felony as a drug trafficking conviction pursuant to INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), under U.S.S.G. § 2L1.2(b)(1)(C), for purposes of an eight-level sentence enhancement for illegal re-entry, since it was not punishable by more than one year’s imprisonment under applicable state law or under federal law since the greater sentence available on account of the prior was not considered to be available for the offense, but rather for the sentence enhancement),  following United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2001) (en banc); United States v. Sanchez-Sanchez, 333 F.3d 1065 (9th Cir. June 26, 2003) (Arizona Revised Statute 13-1805(I), a class 4 felony punishing anyone “who commits shoplifting and has previously committed or been convicted within the past five years of two or more offenses involving burglary, shoplifting, robbery, [etc.],” may not be an aggravated felony offense under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), in light of United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002), since the offense is a felony only on the basis of a prior conviction-based sentence); United States v. Rodriquez, 464 F.3d 1072 (9th Cir. Oct. 5, 2006) (Washington convictions for delivery of a controlled substance, in violation of Wash. Rev.Code § 9A.20.021(1)(c), did not qualify as predicate “serious drug offense” “for which a maximum term of imprisonment of ten years or more is prescribed by law,” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(A)(ii), since the statutory maximum for each offense was five years, and was increased only as a result of a recidivist sentence enhancement, which cannot be considered as punishment for the offense itself), following United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc). But see United States v. Cruz-Guerrero, 194 F.3d 1029 (9th Cir. 1999) (aggregating term for offense and firearm enhancement for sentencing guideline purposes); United States v. Ortiz-Gutierrez, 36 F.3d 80 (9th Cir. 1994) (same).

[237] Lopez v. Gonzales, 549 U.S. __, 127 S.Ct. 625, 630 n.6  (Dec. 5, 2006).

[238] Ali v. Ashcroft, 395 F.3d 722 (7th Cir. Jan. 11, 2005) (Wisconsin conviction of possession with intent to distribute THC, in violation of Wis. Stat. § 961.41(1)(h)(1), was punishable as a felony under state law because of an unrelated prior conviction, and therefore was an aggravated felony under the drug-trafficking portion of INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), even though the state felony characterization depended on a recidivist enhancement), failing to discuss United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc).

[239] United States v. Moreno-Hernandez, 397 F.3d 1248 (9th Cir. 2005) (post-Booker decision distinguishes Corona-Sanchez, and treats recidivist enhancements as being different than non-recidivist enhancements).  See also United States v. Cruz-Guerrero, 194 F.3d 1029 (9th Cir. 1999) (aggregating term for offense and firearm enhancement for sentencing guideline purposes); United States v. Ortiz-Gutierrez, 36 F.3d 80 (9th Cir. 1994) (same).

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.