CALVILLO GARCIA

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697
Matter of Jorge V. CALVILLO GARCIA, Respondent
Decided December 9, 2015
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
A term of confinement in a substance abuse treatment facility imposed as a condition
of probation pursuant to article 42.12, section 14(a) of the Texas Code of Criminal
Procedure constitutes a “term of confinement” under section 101(a)(48)(B) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(48)(B) (2012), for purposes of
determining if an offense is a crime of violence under section 101(a)(43)(F) of the Act.
FOR RESPONDENT: Kyle D. Brown, Esquire, McAllen, Texas
FOR THE DEPARTMENT OF HOMELAND SECURITY: Abe Burgess, Assistant
Chief Counsel
BEFORE: Board Panel: PAULEY and GREER, Board Members; GELLER, Temporary
Board Member.
GREER, Board Member:
In a decision dated March 11, 2015, an Immigration Judge found the
respondent removable and ineligible for cancellation of removal for lawful
permanent residents under section 240A(a) of the Immigration and
Nationality Act, 8 U.S.C. § 1229b(a) (2012), and ordered him removed
from the United States. The respondent has appealed from that decision.
The Department of Homeland Security (“DHS”) opposes the appeal. The
appeal will be dismissed.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Mexico who was admitted to
the United States as a lawful permanent resident on September 18, 1997.
On December 12, 2008, he was convicted of possession of marijuana in
violation of section 481.121(b)(1) of the Texas Health and Safety Code. He
was subsequently charged with aggravated assault in violation of section
22.02(a)(2) of the Texas Penal Code. On October 30, 2009, the criminal
court deferred adjudication of guilt and sentenced the respondent to 5 years
of community supervision pursuant to article 42.12 of the Texas Code of
Criminal Procedure. As a condition of community supervision, the
respondent was ordered to “serve an indeterminate term of confinement and

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treatment of not more than one (1) year or less than 180 days in a substance
abuse treatment facility operated by the Texas Department of Criminal
Justice under Section 493.009 Government Code, and obey all rules and
regulations of the facility.”1
After a trip abroad, the respondent applied for admission to the
United States at a port of entry at Progreso, Texas, on January 22, 2015.
The DHS subsequently placed him in removal proceedings and charged
him with inadmissibility under sections 212(a)(2)(A)(i)(I) and (II) of the
Act, 8 U.S.C. §§ 1182(a)(2)(A)(i)(I) and (II) (2012), as an alien who was
convicted of a crime involving moral turpitude and a controlled substance
violation.
The respondent conceded that he is inadmissible under section
212(a)(2)(A)(i)(II) of the Act and does not challenge his removability on
appeal. As relief from removal, he sought to apply for cancellation
of removal under section 240A(a) of the Act. The Immigration Judge
determined that the respondent was ineligible for this form of relief under
section 240A(a)(3) because he had been convicted of an aggravated felony.
Specifically, the Immigration Judge concluded that the respondent’s
aggravated assault is a “crime of violence” under section 101(a)(43)(F) of
the Act, 8 U.S.C. § 1101(a)(43)(F) (2012), and that his sentence for this
offense constitutes a “term of imprisonment” of at least 1 year, as defined
by section 101(a)(48)(B).
II. ISSUE
The issue in this case is whether a term of confinement in a substance
abuse treatment facility imposed as a condition of probation constitutes
a “term of confinement” under section 101(a)(48)(B) of the Act for
purposes of determining whether an offense is a crime of violence under
section 101(a)(43)(F).
III. ANALYSIS
Reviewing this question of law de novo, we agree with the Immigration
Judge that the respondent was convicted of an aggravated felony and is
therefore ineligible for cancellation of removal under section 240A(a)(3) of
the Act. 8 C.F.R. § 1003.1(d)(3)(ii) (2015). Section 101(a)(43)(F) defines
1 We note that this order tracks the language of article 42.12, section 14(a) of the Texas
Code of Criminal Procedure. Two provisions of article 42.12 are labeled section 14(a),
but all references in this decision are to the provision relating to the Substance Abuse
Felony Program.

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699
an “aggravated felony,” in part, as “a crime of violence (as defined in
section 16 of title 18, United States Code . . . ) for which the term of
imprisonment [is] at least one year.” The respondent does not challenge the
Immigration Judge’s determination that his aggravated assault in violation
of section 22.02(a)(2) of the Texas Penal Code is a categorical “crime of
violence” under 18 U.S.C. §§ 16(a) and (b) (2006).
He also concedes that his deferred adjudication with community
supervision satisfies the definition of a “conviction” under section
101(a)(48)(A) of the Act. United States v. Mondragon-Santiago, 564 F.3d
357, 368 (5th Cir. 2009) (“Federal law counts Texas’s deferred adjudication
probation as a conviction.”); Matter of Punu, 22 I&N Dec. 224, 228 (BIA
1998) (holding that a deferred adjudication under article 42.12, section 5(a)
of the Texas Code of Criminal Procedure was a conviction for immigration
purposes). Thus, the sole issue on appeal is whether the respondent’s term
of confinement in a substance abuse felony punishment facility (“SAFPF”),
imposed as a condition of his probation, is a “term of imprisonment [of] at
least one year” under section 101(a)(43)(F) of the Act.2
As a condition of the respondent’s 5-year sentence to community
supervision, he was required to serve “an indeterminate term of
confinement” in a substance abuse treatment facility. The Immigration
Judge recognized that “an indeterminate sentence is to be considered a
sentence for the maximum term imposed,” which in this case is 1 year.
Pichardo v. INS, 104 F.3d 756, 759 (5th Cir. 1997); see also Matter of S-S-,
21 I&N Dec. 900, 903 (BIA 1997). Additionally, the Immigration Judge
concluded that this term of confinement constitutes a “term of
imprisonment” of at least 1 year within the meaning of sections
101(a)(43)(F) and (48)(B) of the Act.
To the extent that the respondent argues that time served in an SAFPF is
not “imprisonment” because of the nature of the confinement, we disagree.
A “term of imprisonment” is defined 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.” Section 101(a)(48)(B) of the Act (emphasis added). According
to the United States Court of Appeals for the Third Circuit, “the
statute’s disjunctive phrasing . . . suggests that [C]ongress intended for
2 Article 42.12, section 14(a) of the Texas Code of Criminal Procedure refers to this
institution as a “substance abuse treatment facility” operated by the Texas Department of
Criminal Justice under Texas Government Code section 493.009, which, in turn, refers to
the institution as a “substance abuse felony punishment facility.” For purposes of this
decision, we will use these terms interchangeably.

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‘imprisonment’ to cover more than just time spent in jail.” Ilchuk v. Att’y
Gen. of U.S., 434 F.3d 618, 623 (3d Cir. 2006) (holding that house arrest
with electronic monitoring was a “term of imprisonment” under section
101(a)(48)(B)).3
Under article 42.12, section 14(a) of Texas Code of Criminal Procedure,
a judge may require as a condition of community supervision that the
defendant “serve a term of confinement and treatment in a substance abuse
treatment facility operated by the Texas Department of Criminal Justice
under section 493.009, Government Code.” The respondent does not
dispute that individuals subject to this requirement are not free to leave the
facility. Indeed, section 493.009(a)(1) of the Texas Government Code
directs the Texas Department of Criminal Justice to establish a program to
“confine and treat” such defendants, and section 493.009(d) explains that a
defendant’s “release date” will be determined by a “qualified professional.”
Given that a person sentenced to serve a term in an SAFPF is not free to
leave the facility absent that determination, we conclude that this sentence
is a “period of . . . confinement” under section 101(a)(48)(B) of the Act.4
3 As the Third Circuit noted, courts have concluded that house arrest does not constitute
a “sentence of imprisonment” for purposes of the United States Sentencing Guidelines.
Ilchuk v. Att’y Gen. of U.S., 434 F.3d at 623 n.4; see also United States v. Gordon, 346
F.3d 135, 137−39 (5th Cir. 2003). However, this distinction is based on the fact that the
Sentencing Guidelines “define a ‘sentence of imprisonment’ as a ‘sentence of
incarceration’ and distinguish between ‘imprisonment’ and ‘home detention,’” implying
that “home detention” is not a type of “imprisonment” but rather a different form of
punishment. United States v. Gordon, 346 F.3d at 138. Under the Act, however, a “term
of imprisonment” is defined more broadly than a “sentence of incarceration.” Instead, a
“term of imprisonment” includes both periods of incarceration and other forms of
confinement. See section 101(a)(48)(B) of the Act. Regardless, this case involves a
more restrictive form of confinement than a house arrest.
4 In the sentencing context, the Fifth Circuit and others courts have held that
commitment to rehabilitation programs, including the SAFPF, constitutes
“imprisonment.” Specifically, the Fifth Circuit held in two unpublished cases that time
served in an SAFPF constitutes a “sentence of imprisonment” for purposes of
sections 4A1.1 and 4A1.2 of the Sentencing Guidelines. United States v. Mendez, 560
F. App’x 262, 264−65 (5th Cir. 2014); United States v. Chavez, 476 F. App’x 786,
789−90 (5th Cir. 2012). Additionally, a sentence to a term of confinement in an
alternative incarceration program has been found to be a “sentence of imprisonment”
under the Sentencing Guidelines. See United States v. Brooks, 166 F.3d 723, 726−27
(5th Cir. 1999) (holding that a 10-year term in a “special alternative incarceration
program (boot camp)” constituted a “sentence of imprisonment”); United States
v. Vanderlaan, 921 F.2d 257, 259−60 (10th Cir. 1990) (holding that a sentence under the
Narcotic Addict Rehabilitation Act, pursuant to which the defendant was committed to
the custody of the Attorney General for enrollment in a drug rehabilitation program, was
a “sentence of imprisonment”).

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On appeal, the respondent primarily argues that the Immigration Judge
erred in holding that his sentence to confinement and treatment in an
SAFPF as a condition of his probation was a “term of imprisonment”
because he was sentenced directly to probation. According to the Fifth
Circuit, its precedent
distinguishes between sentences of imprisonment that are imposed but then
suspended, and sentences that are for probation in the first instance without any
imprisonment contemplated. If the sentencing court orders imprisonment and then
suspends it, the sentence counts under [section 101(a)(43)(F) of the Act] for
determining if the term of imprisonment is at least one year in duration.
Conversely, if the sentencing court orders probation directly, then that conviction
does not count as a term of imprisonment or as an aggravated felony.
United States v. Mondragon-Santiago, 564 F.3d at 368 (citations omitted);
see also United States v. Banda-Zamora, 178 F.3d 728, 730 (5th Cir. 1999)
(“Thus, when a court does not order a period of incarceration and then
suspend it, but instead imposes probation directly, the conviction is not an
‘aggravated felony.’”). However, it does not appear that the Fifth Circuit
has considered the issue whether an alien who was sentenced to probation
but ordered to serve a term of confinement as a condition of probation has
been sentenced to a “term of imprisonment” under sections 101(a)(43)(F)
and (48)(B) of the Act.
As did the Immigration Judge, we find persuasive the decision in
Hernandez v. Holder, 760 F.3d 855 (8th Cir. 2014), where the Eighth
Circuit held that a sentence imposed as a condition of probation constitutes
a “term of imprisonment” under section 101(a)(48)(B) of the Act. In that
case, the alien pled guilty to grand auto theft in California and was
sentenced to 3 years’ probation with the condition that he spend the first
365 days in county jail. Id. at 857. The court upheld our determination that
he had been sentenced to a term of imprisonment of at least 1 year, stating
that there is “nothing in the statutory text to indicate that Congress intended
to exclude periods of incarceration ordered as a condition of probation
from the definition of ‘term of imprisonment.’” Id. at 860. Distinguishing
Mondragon-Santiago and Banda-Zamora, the court noted that “Hernandez
was sentenced to serve jail time as a condition of probation, while the
offenders in [those cases] were originally sentenced to probation with no
jail time at all.” Id. (discussing United States v. Mondragon-Santiago, 564
F.3d at 359 (4 years’ deferred adjudication probation with no jail time), and
United States v. Banda-Zamora, 178 F.3d at 729 (10 years’ probation with
no jail time)).
The respondent relies on United States v. Landeros-Arreola, 260 F.3d
407 (5th Cir. 2001) for support of his position, but we find that case to be

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distinguishable. The alien there was originally convicted and sentenced to
a term of 4 years’ imprisonment. Once he successfully completed
Colorado’s Regimented Inmate Training Program, however, his sentence
was reduced from imprisonment to probation under a State law that
automatically referred an offender who successfully completed such a
program to the sentencing court to make a motion for a reduction of
sentence pursuant to Rule 35(b) of the Colorado Rules of Criminal
Procedure. See Colo. Rev. Stat. § 17-27.7-104 (1994); Colo. R. Crim. P.
§ 35(b) (permitting a court to reconsider a previously imposed sentence and
to resentence the defendant to a lesser term within the statutory limits). The
Fifth Circuit held that the conviction was not for an aggravated felony
because the sentence was not suspended but was, instead, reduced to
probation, which is not a term of imprisonment, as required by section
101(a)(43)(F) of the Act. United States v. Landeros-Arreola, 260 F.3d at
414 (noting that because the court “reduced the sentence imposed from one
of imprisonment to one of probation . . . , nothing remained of the original
term of imprisonment for the court to suspend”).
By contrast, the respondent was sentenced to probation, and he was
required to serve a term of confinement of not more than 1 year as a
condition of his probation. He has not shown that a Texas court reduced or
modified his sentence to eliminate the condition requiring him to serve a
term of confinement of not more than 1 year. We therefore conclude that
the respondent’s probationary confinement in an SAFPF constitutes a “term
of imprisonment” for purposes of sections 101(a)(43)(F) and (48)(B) of the
Act. Because he was convicted of an aggravated felony, he is ineligible for
cancellation of removal under section 240A(a)(3) of the Act. Accordingly,
the respondent’s appeal will be dismissed.
ORDER: The appeal is dismissed.