(A)  Probation Period Not Part of Sentence to Imprisonment Ordered.  If a court places a noncitizen on probation or parole for three years, that does not count as a sentence to three years imprisonment under the immigration laws. [335]. In some states, however, for some offenses, when a court “probates” a sentence, i.e., by placing the defendant on probation, that amounts to an implicit order to serve that number of years in prison.  That sentence is then “probated” so the person is on probation instead of serving the time.  This is true in Texas, and in some other states as well. 

 

In Georgia, for example, a defendant who receives probation will also automatically receive a suspended sentence.[336]  A defendant who gets probation in Georgia will have a sentence for immigration purposes not because probation is a sentence, but because Georgia probation includes a suspended sentence to imprisonment ordered by the court. 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.[337]  What counts as a sentence to imprisonment ordered by the court, however, is the implicit custody order, not the term of probation, which itself does not qualify under the statutory definition of sentence unless it contains a court order that the defendant serve time in prison or other criminal custody.

[335] 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; 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).

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

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

Fifth Circuit

DEFERRED ADJUDICATION - SENTENCE
United States v. Mondragon-Santiago, ___ F.3d ___, 2009 WL 782894 (5th Cir. Mar. 26, 2009) ("Deferred adjudication probation in Texas does not impose a sentence of imprisonment, and thus does not involve a term of imprisonment. From this analysis we conclude that Mondragon-Santiago's four years of deferred adjudication probation under Texas law is not a term of imprisonment under 1101(a)(48)(B), and thus is not an aggravated felony under 1101(a)(43)(F).").

Sixth Circuit

SENTENCE - FEDERAL - DISTRICT COURT HAS NO AUTHORITY TO "TOLL" PERIOD OF SUPERVISED RELEASE WHILE DEFENDANT IS OUTSIDE OF THE UNITED STATES
United States v. Ossa-Gallegos, 491 F.3d 537 (6th Cir. Jun. 21, 2007) (courts do not have authority under 18 U.S.C. 3583(d) to issue special "conditions" of supervised release which toll the period for which deported aliens are subject to supervised release).

Lower Courts of Ninth Circuit

SENTENCE - PUNISHMENT AS CONDITION OF PROBATION DISTINGUISHED FROM PUNISHMENT FOR CONVICTION
Penal Code 1203.1 authorizes the sentencing court to impose a fine or county jail incarceration as a condition of probation. This fine or jail is not considered to be imposed on account of the conviction, however, but instead as a condition of probation. (See League of Women Voters of California v. McPherson (2006) 145 Cal.App.4th 1469, 1481 ["The defendant who has been placed on probation, therefore, is imprisoned by the court in a local facility as a condition of probation, not as a result of the conviction of a felony"].) This statute may be used only when the court "suspend[s] the imposing or the execution of the sentence . . . ." (Penal Code 1203.1; see (People v. Mauch (2008) ___ Cal.App.5th ___.) "Fixing the penalty for crimes is the province of the Legislature, which is in the best position to evaluate the gravity of different crimes and to make judgments among different penological approaches." (People v. Martinez (1999) 76 Cal.App.4th 489, 494.) "The definition of crime and the determination of punishment are foremost among those matters that fall within the legislative domain." (People v. Mills (1978) 81 Cal.App.3d 171, 176-177; accord, Tracy v. Municipal Court (1978) 22 Cal.3d 760, 765 ["the Legislature has the power and duty to define and classify crimes and offenses"].)

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 - PROBATION - COURT MAY NOT ORDER REPORTING TO ICE AS CONDITION OF PROBATION
New Jersey v. V.D. 951 A.2d 1088 (N.J. Super. A.D. Jul. 23, 2008) (court may not order defendant to report to ICE as condition of probation: "We therefore reverse that portion of the Judgment of Conviction that imposed as a special condition of defendant's probation that she contact ICE and notify it of her conviction.").