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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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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.