(A)  In General.  The question arises whether references to sentence, imprisonment, or confinement are limited to penal institutions, such as criminal jails or prisons, or extend beyond purely criminal institutions to encompass mental institutions, juvenile facilities, work furlough facilities, drug rehabilitation programs, and other non-criminal custodial institutions.  The question also arises whether these statutory terms encompass court orders that may restrain the defendant, but do not actually confine the defendant in a facility or institution, such as home detention.

 

                The general statutory definition of sentence for immigration purposes states a “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 . . . .”[243]  Thus, the statute recognizes that other immigration statutes use the terms “imprisonment” and “sentence,” and states that these include “incarceration,” and “confinement.”  The multiple conviction ground of inadmissibility uses the phrase, “sentences to confinement.” [244]  The withholding disqualification uses the phrase, “sentenced to an aggregate term of imprisonment . . . .” [245]

 

                (1)  Imprisonment.  Most of the sentence requirements refer to a term of imprisonment imposed for a conviction.  For example, to be eligible for the waiver of deportability under former INA § 212(c), the noncitizen must not have “served for such felony or felonies a term of imprisonment” of five years or more for one or more aggravated felony conviction(s).[4]  See § 24.28, infra.

 

                (2)  Confinement.  A number of statutes refer to “confinement.”  For example, the general definition of sentence provides: “Any 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.”[246]  See § 10.63, supra.  A reasonable interpretation of this statute would require confinement in a penal institution as a result of a court-ordered sentence in a criminal case.  The rule of lenity should result in a construction of this term that does not trigger deportability or a decision adverse to the immigrant where the government bears the burden of proof.

 

                (3)  Penal Institution.  One statute requires confinement in a “penal institution.”  A noncitizen is disqualified from showing Good Moral Character if s/he actually “has been confined, as a result of [one or more criminal] conviction[s] to a penal institution for an aggregate period of one hundred and eighty days or more . . . .”[247]  See § 15.6, infra.

 

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

[243] INA 212(a)(2)(B), 8 U.S.C. § 1182(a)(2)(B).  It is not necessary that these offenses be crimes of moral turpitude, and does not matter whether the convictions resulted from one or more proceedings or schemes of criminal misconduct.  Ibid.

[244] 8 U.S.C. § 1231(b)(3)(B).

[245] The five-year bar provided: “The first sentence of this subsection [INA § 212(c)(1995)] shall not apply to an alien who has been convicted of one or more aggravated felonies and has served for such felony or felonies a term of imprisonment of at least 5 years.”

[246]  INA § 241(b)(3)(B), 8 U.S.C. § 1101(a)(48)(B), as amended by IIRAIRA § 322(a)(1).

[247] INA § 101(f)(8), 8 U.S.C. § 1101(f)(8).

Ninth Circuit

SENTENCE " CUSTODY " RESIDENTIAL RE-ENTRY CENTER
United States v. Burke, 694 F.3d 1062 (9th Cir. Sept. 13, 2012) (for purposes of 18 U.S.C. 751(a), escape, a defendant residing in a residential re-entry center as a condition of supervised release is not in custody.).