On December 9, 2015, the Board of Immigration Appeals (BIA or Board) dismissed the appeal of a respondent who had been convicted of marijuana possession and charged with aggravated assault in Texas. As part of his deferred adjudication he was sentenced to “an indeterminate term of confinement” at a Substance Abuse Felony Punishment Facility (SAFPF). In removal proceedings, the Immigration Judge (IJ) found him ineligible for cancellation of removal under INA § 240A(a)(3) because he had been convicted of an aggravated felony crime of violence per INA § 101(a)(43)(F) and his sentence to the SAFPF constituted a “term of imprisonment” of at least 1 year as defined by INA § 101(a)(48)(B). This appeal followed.
Initially, the BIA agreed that respondent had been convicted of an aggravated felony and was thus ineligible for cancellation and stated that an indeterminate sentence is considered a sentence for the maximum term imposed, here 1 year. The Board thus held that time served in the SAFPF is a “term of imprisonment”, i.e., a period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of the imprisonment or sentence. The BIA found that the statute’s paraphrasing suggests that Congress intended to define “imprisonment” as “more than just time spent on jail”; similarly, can a period of incarceration ordered as a condition of probation may not be excluded from this definition. Respondent’s probationary confinement in the SAFPF thus made him ineligible for cancellation of removal. Matter of CALVILLO GARCIA, 26 I&N Dec. 697 (BIA 2015).
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