Criminal Defense of Immigrants


§ 12.17 E. Sentence - Type of Institution

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Under the pre-1952 immigration statute, it was questionable whether a sentence to a juvenile reformatory would be deemed a sentence to imprisonment. Some authorities held that there was no sentence for deportation purposes when the aim of the confinement was corrective instead of penal.[165]  If a sentence was imposed as punishment, however, it was regarded as a sentence for deportation purposes.[166]

                In 1952, however, Congress amended the immigration act to provide that a conviction of a crime of moral turpitude, with a sentence to confinement in a ‘‘correctional institution’’ for one year or more, triggers deportation.[167]

                Commitment to a public hospital or state farm was formerly regarded as a sentence to confinement for deportation purposes.[168]  The courts then adopted a more general rule, stating there is no ‘‘sentence to confinement’’ for deportation purposes if the aim of the commitment is treatment rather than punishment.[169]  Counsel must therefore research state law to determine whether the purpose of the procedure is punishment or rehabilitation, in order to learn whether a disposition constitutes a sentence sufficient to trigger deportation.[170] 


                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 sentence for a conviction.  For example, a formal commitment of a defendant to a juvenile facility, such as the California Youth Authority (CYA), as opposed to a commitment to adult state prison (the California Department of Corrections) with a recommendation that the defendant be housed in CYA, does not constitute a sentence to confinement for immigration purposes.[171]  If counsel can obtain a CYA commitment, this sentence will not be considered a sentence to confinement.  (Be careful to distinguish an actual CYA commitment,[172] which has this beneficial effect, from a state prison commitment, accompanied by a mere “recommendation” that the defendant be housed at CYA,[173] which does not.)  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.[174]


                A commitment under the former Federal Youth Corrections Act[175] or under a comparable state statute[176] is likewise not considered a sentence to confinement.[177]

[165] Cerami v. Uhl, 78 F.2d 698 (2d Cir. 1935); Rizzio v. Kenney, 50 F.2d 418 (D. Conn. 1931).

[166] McMahon v. Neelly, 186 F.2d 846 (7th Cir. 1951); Popoff v. Reimer, 79 F.2d 513 (2d Cir. 1935).

[167] INA § 237(a)(2)(A)(i)(II), 8 U.S.C. § 1227(a)(2)(A)(i)(II), before enactment of the AEDPA, Pub. L. No. 104-132, 110 Stat. 1214. See Burr v. INS, 350 F.2d 87, 90 (9th Cir. 1965) (county jail is prison or corrective institution); Matter of Goodale, 12 I. & N. Dec. 106 (BIA 1967) (noncitizen over 21 years of age convicted of second-degree felony assault with a sentence to an indeterminate term at a reformatory, had been ‘‘sentenced to confinement’’ for purposes of deportation; ‘‘not every confinement ... after conviction of crime, is such a ‘sentence to confinement’ ... to support a charge of deportability’’; the prior holdings had involved commitment of persons under twenty-one).

[168] Abbenante v. Butterfield, 112 F. Supp. 324 (E.D. Mich. 1953), aff’d per curiam, 212 F.2d 794 (6th Cir. 1954) (confinement in a Public Health Service hospital, following conviction of narcotics offense, held to be a sentence); Matter of V, 7 I. & N. Dec. 242 (BIA 1956) (sexual psychopath commitment to state hospital); Matter of B, 5 I. & N. Dec. 538 (BIA 1953) (commitment to state farm as defective delinquent); Matter of CR, 4 I. & N. Dec. 136 (BIA 1950) (sentenced to youth authority), overruled by Matter of N, 8 I. & N. Dec. 660 (BIA 1960). 

[169] Holzapfel v. Wyrsch, 259 F.2d 890 (3d Cir. 1958) (New Jersey conviction for ‘‘open lewdness’’ under rehabilitative statute; sentence imposed, but suspended to ensure the noncitizen’s participation in psychiatric treatment); Matter of Goodalle, 12 I. & N. Dec. 106 (BIA 1967) (sentence of adult offender to reformatory in New York was sentence to confinement); Matter of N, 8 I. & N. Dec. 660 (BIA 1960) (commitment to California Youth Authority; overruling Matter of CR, 4 I. & N. Dec. 136 (BIA 1950); Matter of V, 8 I. & N. Dec. 360 (BIA 1959) (Federal Youth Corrections Act disposition held not a sentence); Matter of M, 8 I. & N. Dec. 256 (BIA 1959); cf. Hernandez-Valensuela v. Rosenberg, 304 F.2d 639 (9th Cir. 1962) (disposition under former Federal Youth Offender Act, 18 U.S.C. § 5010(b), held not a sentence); Adams v. United States, 299 F.2d 327 (9th Cir. 1962) (commitment to California Youth Authority regarded as a conviction for narcotics violation); Matter of P, 8 I. & N. Dec. 517 (BIA 1960); Matter of P, 8 I. & N. Dec. 424 (BIA 1959); Matter of LR, 8 I. & N. Dec. 269 (BIA 1959).

[170] Holzapfel v. Wyrsch, 259 F.2d 890 (3d Cir. 1958).

[171] Matter of N, 8 I. & N. Dec. 660 (BIA 1960); cf. Matter of Goodalle, 12 I. & N. Dec. 106 (BIA 1967) (term in N.Y. State Reformatory did constitute a sentence). 

[172] Welfare & Institutions Code 1731.5(a).  See People v. Seals, 14 Cal.App.4th 1379 (1993).

[173] Welfare & Institutions Code 1731.5(c).

[10] 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.”)

[174]  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.

[175] 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).

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