Criminal Defense of Immigrants

(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).