Tooby's California Post-Conviction Relief for Immigrants

 

For immigration purposes, “sentence imposed” includes a period of confinement ordered by a judge for an offense, “regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.”[4] 

 

The rule has several aspects:

 

(1) What counts is the formal sentence to custody ordered by the court.  If the court orders a sentence of one year in custody to be served, but the defendant actually serves only eight months because of good behavior, s/he has received a “sentence imposed” of one year for immigration purposes, and would be deportable as an aggravated felon if the offense is on the list.

 

(2) The duration of probation does not count as a sentence to confinement for this purpose.  Thus, if the client receives imposition of sentence suspended and no custody time is ordered as a condition of three years probation, that counts as zero sentence imposed.

 

(3) If sentence is imposed, and execution of sentence is suspended, the full sentence imposed nonetheless counts as a sentence imposed for immigration purposes.  For example, if the defendant is sentenced to three years in state prison, and execution of that sentence is suspended, and the defendant is placed on probation on condition of serving six months in county jail, that counts as a “sentence imposed” of three years.[5]

 

(4) Obtaining treatment of the conviction as a misdemeanor under state law does not necessarily defeat consideration of the conviction as an aggravated felony if the conviction and sentence meet the definition.  In other words, conviction of a listed offense as a misdemeanor, with a sentence imposed of one year, constitutes an “aggravated felony” regardless of the fact that the offense is only a misdemeanor under state law.[6]

 

(5) Deferred entry of judgment, and similar rehabilitative programs, are ineffective to prevent consideration of a conviction as an aggravated felony, if one year of custody or more is ordered by a court after a guilty or no contest plea.[7]

 

(6) Concurrent sentences are evaluated as the length of the longest sentence and consecutive sentences are added together.[8]  Indeterminate sentences are counted as the maximum possible sentence.

 

(7) Total Sentence Imposed Includes Original Sentence Plus Any Later Additional Sentences Imposed.  Where a defendant has previously received a sentence of 364 days in custody for an offense that would be an aggravated felony with a one-year sentence imposed, any additional custodial sentence imposed as a result of a probation violation would be added to the original sentence and would transform the conviction into an aggravated felony.

 

            In that case, the total sentence imposed includes the original sentence to custody, plus any additional sentence to custody imposed on account of a probation violation.[9]  Defense counsel at the probation violation plea bargaining and sentencing stages should therefore: (1)  Ask the court to vacate the original probation condition imposing the custodial sentence of 364 days; (2)  Enter a waiver of credit for time previously served for the 364 days already served; and (3) Ask the court to impose a new probation condition of whatever time in custody will meet the prosecution and court’s sense of an appropriate additional custodial sentence for the probation violation.

 

            (A new sentence of no more than 180 days in custody would enable the conviction to qualify under the sentence-imposed requirement of the Petty Offense Exception to inadmissibility for a crime of moral turpitude conviction if that is a relevant consideration for the defendant.)

[4] 8 U.S.C. § 1101(a)(48)(B), as amended by IIRAIRA § 322(a)(1).

[5] 8 U.S.C. § 1101(a)(48)(B).

[6] United States v. Graham, 169 F.3d 787 (3d Cir. 1999)(state misdemeanor theft conviction, with one year suspended sentence, considered "aggravated felony" under 8 U.S.C. § 1101(a)(43)(G) for federal sentencing purposes).  But see Matter of Crammond, 23 I. & N. Dec. 9 (BIA 2001)(state sexual abuse of a minor conviction must be a felony to constitute an aggravated felony).

[7] Matter of Punu, Int. Dec. 3364 (BIA 1998)(en banc)(INS follows will of Congress on this point, regardless of what a state legislature may say).

[8] Matter of Fernandez, 14 I. & N. DEC. 24 (BIA 1972).

[9] United States v. Gomez-Leon, 545 F.3d 777 (9th Cir. 2008); United States v. Moreno-Cisneros, 319 F.3d 456, 458 (9th Cir. 2003); Singh v. U.S. Atty. Gen., 561 F.3d 1275 (11th Cir. 2009) (per curiam) (rejecting argument that when a defendant violates his probation or community control, and receives a sentence to custody, he is not then incarcerated for the underlying conviction, but only for the violation, so new sentence of one year or more triggers aggravated felony ground of deportation).