(B)  Specific Institutions.  The following sections discuss whether court-ordered confinement in specific institutions constitutes a sentence to imprisonment or confinement under various immigration statutes.

 

                (1)  County Jail.  Confinement in jail qualifies as “imprisonment” for immigration purposes.[249]  As the Ninth Circuit stated:

 

It is self-evident that Gomez’s incarceration in county jail following a vehicular manslaughter conviction constitutes “confine[ment], as a result of conviction, to a penal institution,” within the meaning of § 1101(f)(7). 8 U.S.C. § 1101(f)(7); see, e.g., Rivera-Zurita v. INS, 946 F.2d 118, 121, nn.3, 4 (10th Cir.1991) (assuming, without explanation, that the petitioner’s placement in the custody of the county sheriff, as well as his thirty-day confinement in jail, counted as confinement to a penal institution for purposes of § 1101(f)(7)); Matter of Valdovinos, 1982 WL 190702, 18 I. & N. Dec. 343, 344 (BIA 1982) (assuming that the alien’s incarceration in county jail constituted confinement to a penal institution for purposes of § 1101(f)(7)). There is no indication in the statute that Congress intended to exclude from the purview of the statute confinement in a county jail or other local detention center. The requirement that the confinement be as a result of a conviction precludes counting any time a person may have spent in pretrial detention. Thus, the plain meaning of the statute is that confinement in any facility-whether federal, state, or local-as a result of conviction, for the requisite period of time, falls within the meaning of § 1101(f)(7). We therefore conclude that Gomez’s incarceration in a county jail constitutes confinement to a penal institution for purposes of § 1101(f)(7).[250]

 

The Ninth Circuit continued: “This interpretation is consistent with decisions of the BIA in which the Board interpreted § 1101(f)(7) to include penal institutions that are not state or federal prisons. See Valdovinos, 18 I. & N. Dec. at 345 (assuming that the alien’s incarceration in county jail constituted confinement in a penal institution and finding that a county minimum security area with a work furlough facility was a penal institution); Matter of Piroglu, 1980 WL 121941, 17 I. & N. Dec. 578, 580 (BIA 1980) (stating that “the rationale behind [8 U.S.C. § 1101(f)(7)] was that a person who has served a jail term of a specified length is not worthy of special exemptions from the penalties of the immigration laws”) (emphasis added).”[251]

 

        (2)  Drug Treatment Commitment.  The Sixth Circuit defined imprisonment broadly, as any restraint on the person, whether or not behind prison bars. Consequently, a drug addict committed to a United States Public Health Service hospital for chemical dependency treatment had been sentenced to confinement.[252]

 

California.  Civil commitment of a narcotics addict to the California Rehabilitation Center (CRC)[253] following a conviction for any crime is probably not a sentence to confinement or incarceration.  (However, see § 21.10, infra, for immigration consequences of the resulting classification as an addict.) The California statutory scheme is intended to provide rehabilitative, non-punitive treatment to addicts or noncitizens in danger of succumbing to addiction.[254]  A problem might appear to arise because, in order to adjourn criminal proceedings in preparation for a hearing on the commitment issue, the court is required to suspend the imposition or execution of sentence following a misdemeanor conviction or, in the case of a felony conviction, to impose sentence and suspend execution.[255]  However, while a sentence the execution of which is suspended normally constitutes a “sentence to confinement,” this should not be the case where the suspended sentence is merely a technical means of placing the defendant in a non-penal treatment program.[256]

 

                (3)  Home Detention or Electronic Monitoring.  Home detention or electronic monitoring, by an ankle bracelet, for example, should not be considered imprisonment or confinement in a penal institution.  It is clearly designed to be an alternative to jail or prison.  There is no question it does not constitute imprisonment, since the home is not a prison or a “penal institution.” 

 

It is more debatable whether it constitutes confinement.  In one sense, it does constitute confinement in the sense that a court order directs the defendant to stay in a certain place.  This should not be considered sufficient, for these purposes, however, because probation orders typically prohibit a defendant from leaving the county or state without permission, as the home detention probation order directs the defendant not to leave home without permission, but probation conditions (other than custodial ones such as incarceration in county jail) are not considered a sentence of imprisonment for these purposes.  See § 10.63(B)(4), supra.   Home detention does not constitute a sentence to confinement under the United States Sentencing Guidelines.

 

                In Matter of Valdovinos, 18 I. & N. Dec. 343, 344-345 (BIA 1992), the BIA found that a noncitizen’s incarceration for 132 days in the Men’s Correctional Facility at La Honda, California, a “minimum security area with a work furlough facility” was clearly a “penal institution” for purposes of barring Good Moral Character,[257] noting that California Penal Code § 2900.5 “does not draw any such distinctions when it lists such work camps among the penal institutions covered by that section.” 

 

                Under California law, “jail, camp, work furlough facility, halfway house, rehabilitation facility, hospital, prison, juvenile detention facility, or similar residential institution” are not listed as places where, if a defendant spends time in such facility, s/he must receive credit for time in custody.[258]  The purpose of this section is to give credit for time served prior to the imposition of a sentence or fine.  “Home detention” is not included in this list as a “penal institution.”[259]  The legislative history of this statute also shows that home detention is not included under that section.[260] 

In a related context, the California courts have also found that home detention is different from penal custody, in that a defendant sentenced to home detention is not entitled to credit for work or good behavior.[261]  The basis for this holding was a finding that the statute providing for credit for good behavior was intended to insure that custodial facilities ran smoothly.[262]  The court found that “this statutory scheme has no application where, as here, a defendant is not in ‘actual custody’ in a facility described in subdivision (a)(1) of section 4019.”[263]

 

                The Ninth Circuit has found that “the plain meaning of the statute is that confinement in any facility — whether federal, state, or local — as a result of conviction, for the requisite period of time falls within the meaning of § 1101(f)(7).”[264]  Looking to the “plain meaning,” the Ninth Circuit also requires confinement in a facility.  A defendant’s home is clearly not a “federal, state, or local facility.”

 

                The Third Circuit appears to agree.  In Patel v. Zemski,[265] the court noted that the criminal judge “sentenced Patel to five months of home probation and five months in prison at the Allenwood Federal Prison in Pennsylvania.  Although persons who are confined to a penal institution for 180 days or more cannot establish Good Moral Character, a prerequisite to naturalization, INA § 101(f)(7), 8 U.S.C. § 1101(f)(7), Patel has not lost his eligibility for naturalization because his jail sentence was less than 180 days.”  If the court had included home detention in the sentence to a “penal institution,” the court would have found Mr. Patel ineligible in this case, because his sentence would have been to a total of 10 months, which is greater than 180 days.

 

                The Third Circuit’s decision in Ilchuk v. Att’y Gen of the United States,[266] is not to the contrary.  The case held that sentence to home imprisonment counts as part of “term of imprisonment,” for purposes of determining whether a conviction is a drug-trafficking aggravated felony.[267]  As the court makes clear, that section includes periods 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.”[268]  The court found that home detention counted as “confinement,” rather than “incarceration,” finding that by using the disjunctive terms, Congress, in that statute, meant to reach “more than just time spent in jail.”[269]

 

(4)  Juvenile Facilities.  Sentencing after an adjudication in juvenile proceedings is not a sentence imposed as a result of a conviction, and therefore does not trigger immigration consequences caused by a conviction, see § 12.21, infra, and confinement as a result of a juvenile proceeding should not be considered imprisonment for immigration purposes.  See § 12.17, infra. 

 

(5)  Mental Hospital.  Confinement in a mental hospital, a facility directed primarily at rehabilitation and cure, does not qualify as a sentence to imprisonment.[270]  Since the repeal of the Mentally Disordered Sex Offender Act (former Welf. & Inst. § § 6300-6330), it is clear that sex offenders convicted in California after January 1, 1982 are sentenced to confinement, even though they, like any prisoner, may be transferred from prison to a state mental hospital.[271]  Treatment programs in other jurisdictions may be classified differently.[272]

 

(6)  Youthful Offender Facilities.  A commitment under the former Federal Youth Corrections Act[273] or under a comparable state statute[274] is not considered a sentence to confinement.[275] 

[249] Burr v. Edgar, 292 F.2d 593 (9th Cir. 1961) (confinement in a county jail qualifies); Burr v. INS, 350 F.2d 87 (9th Cir. 1965); Gomez-Lopez v. Ashcroft, 393 F.3d 882 (9th Cir. 2005) (time spent in county jail qualifies as confinement in a penal institution for purposes of the 180-day Good Moral Character bar); 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).

[250] Gomez-Lopez v. Ashcroft, 393 F.3d 882, 885-886 (9th Cir. 2005) (footnote omitted).

[251] Id. at 886 n.4.

[252] United States ex rel. Abbenante v. Butterfield, 112 F. Supp. 324 (E.D. Mich. 1953), aff’d, 212 F.2d 794 (6th Cir. 1954) (per curiam).

[253] California Welf. & Inst. Code § § 3050, 3051.

[6] California Welf. & Inst. Code § 3000; People v. Navarro, 7 Cal.3d 248, 264, 102 Cal.Rptr. 137 (1972). 

[254] Welf. & Inst. Code § § 3050, 3051.

[8] Holzapfel v. Wyrsch, supra.

[255] INA § 101(f)(7), 8 U.S.C. § 1101(f)(7).  See § 15.6, infra.

[256] California Penal Code § 2900.5(a).

[257] Note that while “home detention” is listed in California Penal Code § 2900.5(f), that section allows pre-sentence credits only where the statute requires a mandatory minimum sentence.

[258] Prior to 1991, California Penal Code § 2900.5 subdivision (a) provided in pertinent part, “In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, including but not limited to any time spent in a jail, camp, work furlough facility, halfway house, rehabilitation facility, hospital, prison, juvenile detention facility, or similar residential institution, all days of custody of the defendant, including days served as a condition of probation in compliance with a court order ... shall be credited upon his time of imprisonment.”  In 1991, Penal Code § 2900.5 , subdivision (a) was amended to add “home detention program” to those forms of custody for which a defendant would be entitled to presentence credit.  See People v. Lapaille, 15 Cal.App.4th 1159, 1165 (1993).  However, this change was subject to a sunset clause, id. at 1165-1166, which expired on January 1, 1999.  The California legislature notably chose not to extend the inclusion of “home detention.”  Therefore, as of that date, “home detention” is no longer included among the forms of custody for which a defendant is entitled to presentence credit, except under California Penal Code § 2900.5(f).  “Where a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject . . . is significant to show that a different intention existed.”  People v. Drake, 19 Cal.3d 749, 755 (1977).  If the home detention in question occurred after January 1, 1999, it would not have been eligible for credit as “custody” sufficient to receive pre-sentence credits under California Penal Code § 2900.5(a).

[259] People v. Silva, 114 Ca.App.4th 122, 127-128 (2003) (“we cannot conclude that defendant was in “actual custody” as required by subdivision (f) of section 4019,” in order to get work/good behavior credit, “rather, he was at home or at work wearing a bracelet.”).

[260] Id. at 128. 

[261] Ibid.

[262] Gomez-Lopez v. Ashcroft, 393 F.3d 882 (9th Cir. Nov. 3, 2004).

[263] Patel v. Zemski, 275 F.3d 299, 303 (3d Cir. 2001), abrogated on other grounds by Demore v. Kim, 538 U.S. 510 (2003).

[264] Ilchuk v. Att’y Gen of the United States, 434 F.3d 618, 623-624 (3d Cir. 2006).

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

[266] Ibid. (emphasis added).

[267] Ibid.

[268] Holzapfel v. Wyrsch, 259 F.2d 890 (3d Cir. 1958); Matter of M, 8 I. & N. Dec. 256 (BIA 1959).

[269] California Penal Code § 1365.

[24] See Holzapfel v. Wyrsch, 259 F.2d 890 (3d Cir. 1958); United States ex rel. Abbenante v. Butterfield, 112 F.Supp 324 (E.D.Mich 1953), aff’d per curiam, 212 F.2d 794 (6th Cir. 1954).

[270]  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.

[271] 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).

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

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.).