When trying to figure out if a migrant has been sentenced to imprisonment, a court-ordered drug rehabilitation facility should be treated just like jail time, the Board of Immigration Appeals recently held. Matter of Calvillo Garcia, 26 I&N Dec. 697 (BIA 2015). In doing so, the BIA further disincentivized alternative dispositions that have become a mainstay of criminal proceedings as a way of diverting people from prisons and into supportive treatment environments.
This case involved an LPR convicted of aggravated assault in Texas and sentenced to five years of community supervision, including up to one year in a drug treatment facility. Id. at 697-98. Though the criminal judge and Texas criminal code referred to this facility as a “substance abuse treatment facility” alluding to the medical care offered there, the BIA dropped a subtle footnote explaining that it would instead refer to the site as a “substance abuse felony punishment facility.” Id. at 699 & n.2. Unlike the criminal judge’s wording, the Board’s chosen locution explicitly frames the facility as one intended to punish felons as opposed to one where people can receive professional help to avoid repeating their past mistakes.
In that vein, the BIA’s legal analysis limits the circumstances in which a drug rehabilitation facility (or any secure rehabilitation facility) in lieu of jail helps migrants avoid removal. Focusing on INA § 101(a)(48)(B)’s language that a “term of imprisonment” means “the period of incarceration or confinement ordered by a court of law,” the Board favorably quoted a Third Circuit decision explaining that “‘the statute’s disjunctive phrasing…suggests that [C]ongress intended for ‘imprisonment’ to cover more than just time spent in jail.’” Id. at 699-700 (quoting Ilchuk v. Att’y Gen. of U.S., 434 F.3d 618, 623 (3d Cir. 2006)). Because people ordered into substance abuse treatment facilities under Texas law are “not free to leave the facility,” they are confined, the Board concluded. Id. at 700.
All of this matters because the immigration judge concluded that aggravated assault is a crime of violence type of aggravated felony under INA § 101(a)(43)(F), but that provision is only triggered if the migrant is sentenced to a “term of imprisonment” of at least one year.
Standing alone, the Board’s decision appears narrow. It affects, after all, a single statutory definition. Read in the context of contemporary criminal proceedings, however, this decision raises the stakes of entering the criminal justice system at all and moves toward immobilizing the great potential of diversionary programs to breathe justice and administerability into modern criminal proceedings.
In recent years, legislators, prosecutors, defense attorneys, and judges have come to realize that the criminal justice system, including jails and prisons, is under heavy toll. One promising avenue for releasing some pressure is to encourage pleading guilty or nolo contendere by limiting the harsh consequences of conviction through reduced time in jail or prison. Defendants benefit by avoiding imprisonment and sometimes, as in this situation, receiving rehabilitative services. The government, including prosecutors’ offices and courts, benefit by moving cases through the system more quickly. And taxpayers benefit by saving the costs associated with lengthier proceedings, including trials.
By equating rehabilitation facilities with jails and prisons, however, the Board has made it all but useless for defendants concerned about remaining in the United States to accept a plea that will lead to time in a rehabilitation facility if they might face removal on the basis of one of the several INA provisions triggered by a minimum term of imprisonment (see page 200 of my book Crimmigration Law). Instead, they have every incentive to turn down a plea offer and force the prosecution to meet its burden at trial.
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