Criminal Defense of Immigrants

 

(D)  Confinement of 180 Days or More.  A person who has been confined, during the period for which Good Moral Character must be shown, to a penal institution for an aggregate period of 180 days or more as a result of one or more criminal convictions[93] is barred from establishing Good Moral Character.[94]  The nature of the convictions is irrelevant, and it does not matter when the offenses were committed. [95]  This bar applies even if the conviction does not trigger inadmissibility,[96] and even if the person was a United States citizen at the time of the confinement.[97]

 

                The confinement must result from a criminal conviction, as defined under INA § 101(a)(48)(A).[98]  The Ninth Circuit has found that “the plain meaning of the statute is that confinement in any facility-whether federal, state, or local-as a result of conviction, for the requisite period of time falls within the meaning of § 1101(f)(7).”[99]  Confinement includes time spent in county jail,[100] on work furlough,[101] and in pre-trial[102] and presentence custody, as long as the credits are counted toward the actual release date of the person after sentence to custody has been imposed for a conviction.[103]  Confinement in a hospital for purposes of psychiatric or other medical treatment will probably not be sufficient, provided the confinement is not punitive.[104]  Time spent in home detention also should not count,[105] but the issue may turn upon how home detention is treated under the laws of the convicting jurisdiction.[106]  See § 10.64(B)(3), supra.

 

                Probation is not included.[107]  However, any additional time in custody imposed as a result of a finding of a probation violation is included.[108]  An executive pardon will eliminate any confinement suffered as a result of the pardoned conviction.[109]  The same is true where the conviction has been vacated as legally invalid or where the sentencing court modifies the sentence.  See Chapter 11, supra.

 

[93] As defined by INA § 101(a)(43), 8 U.S.C. § 1101(a)(43).  See Chapter 7, supra.  See also Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988).

[94] INA § 101(f)(7), 8 U.S.C. § 1101(f)(7).

[95] Matter of Piroglu, 17 I. & N. Dec. 578, 580 (BIA 1980)(statement in headnotes but not discussed in decision).

[96] See Matter of Zangwill, 18 I. & N. Dec. 22 (BIA 1981).

[97] Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988) (applying Good Moral Character bar to denaturalized noncitizen), modifying Matter of Zangwill, 18 I. & N. Dec. 22 (BIA 1981); Matter of Seda, 17 I. & N. Dec. 550 (BIA 1980).

[98] INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A).  See Chapter 7, supra.  Cf. Matter of Zangwill, 18 I. & N. Dec. 22 (BIA 1981), as modified by Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988).

[99] Gomez-Lopez v. Ashcroft, 393 F.3d 882 (9th Cir. Nov. 3, 2005).

[100] Id.

[101] Matter of Valdovinos, 18 I. & N. Dec. 343 (BIA 1982).

[102] Id.

[103] Id. at 344.

[104] See Holzapfel v. Wyrsch, 259 F.2d 890 (3d Cir. 1958) (confinement in a psychiatric hospital for treatment did not trigger deportation under the crime of moral turpitude ground, which at that time required a sentence imposed of one year in custody).

[105] In Patel v. Zemski, 275 F.3d 299, 303 (3d Cir. 2001), abrogated on other grounds by Demore v. Kim, 538 U.S. 510 (2003), the court noted that the criminal judge “sentenced Patel to five months of home probation and five months in prison at the Allenwood Federal Prison in Pennsylvania.  Although persons who are confined to a penal institution for 180 days or more cannot establish Good Moral Character, a prerequisite to naturalization, INA § 101(f)(7), 8 U.S.C. § 1101(f)(7), Patel has not lost his eligibility for naturalization because his jail sentence was less than 180 days.”  If the court had included home detention in the sentence to a “penal institution,” the court would have found Mr. Patel ineligible in this case, because his sentence would have been to 10 months, a period greater than 180 days. 

[106] See, e.g., People v. Silva, 114 Ca.App.4th 122, 127-128 (2003) (“we cannot conclude that defendant was in ‘actual custody’ as required by subdivision (f) of section 4019,” in order to get work/good behavior credit, “rather, he was at home or at work wearing a bracelet.”).

[107] Matter of Gantus-Bobadilla, 13 I. & N. Dec. 778, 780 (BIA 1971), modified by Matter of Wojtkow, 18 I. & N. Dec. 111 (BIA 1981).

[108] Matter of Piroglu, 17 I. & N. Dec. 578, 580 (BIA 1980).

[109] Matter of H, 7 I. & N. Dec. 249 (BIA 1956).