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In removal (deportation) proceedings in Immigration Courts across the country, STERN Law and other immigration lawyers fight against anti-immigrant policies and laws every day. An example of such a policy is the southern states’ refusal to accept a criminal state court Judge’s ruling when it benefits the immigrant. Routinely, permanent residents and undocumented immigrants are placed in removal proceedings due to a criminal conviction. Once in Immigration Court, the conviction is interpreted much differently by the Immigration Court and the 11th Circuit than it once was by the sentencing court itself. And suddenly, the person faces imminent deportation simply because of the Court’s misinterpretation.

Let’s use an example of a lawful permanent resident green-card-holder named Sonia who was convicted of a misdemeanor battery charge due to a minor altercation at a nightclub. At the time of the conviction, Sonia was told by her lawyer and the Judge that she received a sentence of 12 months probation. She was not required to serve any time in jail. In many courts in Georgia, the pre-preprinted sentence sheets read, “shall be sentenced to 12 months confinement to be served on probation.” In every criminal court in this State, that sentence is interpreted to mean that the Judge sentenced Sonia to 12 months of probation only. Sonia’s lawyer told her that 12 months of probation on a simple battery conviction will not put her in jeopardy of deportation.

Now, Sonia is transferred to immigration custody due to the conviction. The government argues to the Judge that Sonia was convicted of an “aggravated felony” offense for a crime of violence with a sentence of 12 months of confinement (or jail). An aggravated felony almost always means mandatory deportation immediately without the possibility of release. Sonia’s immigration lawyer says, “Wait a minute! The Judge sentenced Sonia to only 12 months of probation. To make it even clearer to the Court, I have a signed order from the sentencing Judge clarifying that she in fact sentenced Sonia to 12 months of straight probation without any period of confinement.” The Judge is not impressed. The Immigration Judge uses his own interpretation of Georgia criminal law, and proclaims his belief that all Georgia sentences are confinement regardless of the sentencing Judge’s order. Sonia is ordered deported right there on the spot at her first hearing. How could this happen?!

Sonia’s lawyer of course files an appeal. The problem now is that an appeal to the conservative 11^th Circuit Court of Appeals is uncertain. The opinions issued recently, especially United States v. Garza-Mendez decided just last month, have been harmful to the interests of the immigrant. United States v. Garza-Mendez, 2013 WL 6044113, C.A. 11 (GA 2013), has worried immigration lawyers that Immigration Courts may soon not accept sentence clarification orders of the sentencing judge under any circumstance at all.

Taking a closer look, Mr. Garza-Mendez was originally convicted of violating Georgia’s domestic violence statute by committing battery on a member of his household. This is a deportable offense no matter what but is only an “aggravated felony” causing mandatory deportation if there is a sentence of 12 months or more in confinement. The sentencing Judge gave him 12 months “of confinement in the Gwinnett County [jail]” split into 30 hours of incarceration and the remainder of the 12 months on probation. He went back to the sentencing Court to clarify his sentence, but the sentencing Judge no longer worked there. Instead, a replacement judge from the same court clarified that Mr. Garza-Mendez received only 30 hours of confinement – not 12 months of confinement. This was of no importance to the Immigration Judge or the Court of Appeals. Both Courts upheld Mr. Garza-Mendez’s sentence as an aggravated felony and refused to accept the clarification order. The 11^th Circuit seemed more concerned that a different Judge issued the clarification order and simply restated the sentence rather than any substantive examination of the law.

Because STERN Law never simply jumps on the bandwagon without a closer analysis, I am not as pessimistic as other colleagues of mine. This case is very similar to a case already decided by the 11^th Circuit – United States v. Ayala-Gomez, 255 F. 3d 1314 (11^th Cir. 2001). There the Court ruled that a split sentence, meaning a portion of the time in jail and a portion on probation, is considered a sentence of incarceration for the full term of the sentence even if only a small period of confinement was imposed. This was not a good decision by any means, but it has been law for almost 13 years. It is nothing new. However, United States v. Guzman-Bera, 216 F. 3d 1019 (11^th Cir. 2000), has also been the law for a very long time. In that case, the 11^th Circuit said that a sentence of straight probation (without any period of time in confinement) is absolutely NOT an aggravated felony. Guzman-Bera is still good law!

The recent Garza-Mendez decision is nothing more than intimidation by conservative members of the Court in an attempt to deter immigrants from asserting their right to appeal. I believe that Sonia’s case would prevail because she was sentenced directly to 12 months of probation only. However, she would have to be willing to wait out the appeal process, while in custody, for months on end. This is the challenge we face. However, the Garza-Mendez decision did not change the law; it did nothing more than remind us of the constant struggle and need to fight hard for Immigrants’ Rights.

*It is important to note that if Garza-Mendez had a criminal lawyer who properly understood the immigration consequences of his guilty plea and sentence, he may have received a sentence that was not ultimately considered an aggravated felony causing deportation in the Immigration Court.