The U.S. Court of Appeals for the Tenth Circuit held that the period of confinement actually served governs a determination of whether a migrant lacks good moral character even if a criminal court reduces the sentence to a period less than the time actually spent behind bars. Garcia-Mendoza v. Holder, No. 13-9531, slip op. (10th Cir. June 2, 2014). Judge Briscoe wrote the panel’s opinion.
This case involved a man who overstayed a visa and, years later, was convicted of driving under the influence and leaving the scene of an accident. He spent 104 days in jail prior to his conviction, all of which were credited towards his term of imprisonment, and another 93 days after his conviction. In total, he was confined for 197 days. Id. at 2-3. Upon completion of his sentence, DHS initiated removal proceedings and an immigration judge found him removable for having overstayed his visa.
Garcia-Mendoza sought cancellation of removal for non-lawful permanent residents. INA § 240A(b). Among other requirements for non-LPR cancellation, a migrant must show that he has had good moral character for the ten years preceding the date of application. INA § 240A(b)(1). A person who “has been confined, as a result of conviction, to a penal institution for an aggregate period of one hundred and eighty days or more” cannot show good moral character. INA § 101(f)(7). Accordingly, the IJ denied Garcia-Mendoza’s cancellation application because Garcia-Mendoza had been confined for more than 180 days.
In an attempt to remedy this, Garcia-Mendoza asked a state court to amend his sentence to 166 days with no credit for time served. The state court agreed. Garcia-Mendoza, No. 13-9531, slip op. at 3. Even with this new sentence, the IJ denied the cancellation application, reasoning that the reduced sentence did not change the fact that Garcia-Mendoza had already been confined for more than 180 days as a result of his conviction. Id. at 4. The BIA affirmed.
The Tenth Circuit agreed with the BIA. There is nothing ambiguous about § 101(f)(7), the court explained. The provision’s “language focuses on the actual period of confinement, and does not reference the ordered term of imprisonment. The inquiry under [§ 101(f)(7)] is fact-based, dependent on the actual period of confinement, and not dependent on the formal language of the court’s sentencing order.” Garcia-Mendoza, No. 13-9531, slip op. at 6. In other words, all that matters is a) whether Garcia-Mendoza was convicted and b) how much time he was confined during the course of the criminal proceedings that led to that conviction. It is irrelevant whether he spent some or all of this time behind bars while criminal proceedings were pending; every day counts. Id. at 9-10.
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