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Matter of Jorge V. Calvillo Garcia

In Calvillo Garcia, the Board of Immigration Appeals held that a term of confinement in a Texas substance abuse treatment facility imposed as a condition of probation counts as a "sentence to imprisonment" under the Immigration and Nationality Act. Since it does, Calvillo Garcia's indeterminate sentence to no less than 6 months and no more than 1 year in such a facility satisfies the one year or more sentence required by the crime of violence aggravated felony definition.

Calvillo Garcia did not dispute that his deferred adjudication under Texas law counted as a conviction under the Act. Nor did he dispute that the offense he was placed on deferred adjudication for, aggravated assault in violation of Texas Penal Code section 22.02(a)(2) was a crime of violence as defined by both subsections (a) and (b) of 18 U.S.C. 16. His only argument was that time ordered to be spent in a substance abuse treatment facility was not a sentence to imprisonment.

Unfortunately for him, the Act defines "sentence to imprisonment" as a “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.” 8 USC 1101(a)(48)(B). The Board found that the inclusion of both incarceration and confinement meant the definition was broader than just time in jail or prison. It agreed with the Third Circuit in this respect. Indeed, the Third Circuit held that confinement included even house arrest with electronic monitoring.  A person ordered to spend time in a substance abuse treatment facility as a condition of probation under this procedure is not free to leave that facility--he or she is confined.  That confinement is imprisonment according to Matter of Cavillo Garcia.