Criminal Defense of Immigrants

(A)  Basic Rules.  For immigration purposes, 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” will be counted as the term of the sentence.[1]  This changed the former rule, which was that if a court suspended imposition of sentence and ordered jail time as a condition of probation, the INS would not consider the suspended portion as constituting part of a sentence imposed for immigration purposes.[2]

“Sentence imposed” is the amount of custody time ordered by a court as part of a criminal sentence for a criminal conviction.[3]  This can be either as part of a judgment, or as a condition of probation.

If the client receives no court-ordered prison sentence (even if execution is suspended), and no custody time is ordered as a condition of probation, the court has not ordered any sentence of imprisonment, and there is no “sentence imposed” for purposes of creating an aggravated felony conviction.[4]  This would be a safe haven sentence for those offenses requiring a one-year sentence to be imposed before they would constitute aggravated felonies.  See § 7.32, supra.

If the person was ordered to serve six months in custody as a condition of probation and was released from custody after only four months, because of conduct credits, early release, or the like, the courts will still consider that the sentencing court ordered service of a six-month sentence for immigration purposes.[5]  In 1996, Congress specifically overruled cases in which the BIA had held that custody imposed as a condition of probation was not a sentence imposed for this purposes.[6]

[199] INA § 101(a)(48)(B), 8 U.S.C. § 1101(a)(48)(B), as amended by IIRAIRA § 322(a)(1).

[200] See D. Kesselbrenner & L. Rosenberg, Immigration Law And Crimes § 6:5 (2003).

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

[202] It is true that the statute states that a sentence includes “the period 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.”  INA § 101(a)(48)(B), 8 U.S.C. § 1101(a)(48)(B).  However, if no custody at all is ordered as part of the sentence, there is no confinement or incarceration to be computed as part of the sentence.  There may still be custody ordered as a condition of probation, even if no prison sentence is ordered, which gives meaning to the phrase in the statute.  The bottom line, however, is that the sentence imposed includes only the incarceration that is “ordered by a court of law . . . .”  Ibid. (emphasis supplied). 

[203] INA § 101(a)(48)(B), 8 U.S.C. § 1101(a)(48)(B), amended by IIRAIRA § 322.

[204] See H.R. Conf. Rep. No. 828, 104th Cong., 2d Sess. (1996), reprinted in 142 Cong. Rec. H10899 (daily ed. Sept. 24, 1996), overruling Matter of Esposito, 21 I. & N. Dec.1 (BIA 1995); Matter of Castro, 19 I. & N. Dec. 692 (BIA 1988).  This also is the definition of sentence imposed under the U.S. Sentencing Guidelines in illegal re-entry cases. See United States v. Hernandez-Valdovinos, 352 F.3d 1243 (9th Cir. 2003).