Jorge Calvillo Garcia v. Jefferson Sessions, III, 870 F.3d 341

Jorge Calvillo Garcia, a lawful permanent resident since 1997, was convicted in Texas of marijuana possession (2008) and aggravated assault (2009); for the aggravated assault he received five years’ deferred-adjudication community supervision with a condition requiring confinement in a substance abuse felony punishment facility (SAFPF) for 180–365 days.
DHS initiated removal proceedings in 2015 charging removability for a controlled-substance conviction and a crime involving moral turpitude; Calvillo Garcia conceded the controlled-substance charge but denied the moral-turpitude charge.
He applied for cancellation of removal under 8 U.S.C. § 1229b(a); the IJ denied relief, concluding the aggravated-assault conviction was an aggravated felony because it carried a term of imprisonment of at least one year.
The BIA affirmed, holding that the court-ordered confinement to a SAFPF as a condition of community supervision falls within the INA’s definition of “term of imprisonment.”
Calvillo Garcia appealed to the Fifth Circuit, arguing (1) his deferred adjudication does not constitute a conviction and (2) SAFPF confinement as a condition of probation is not a “term of imprisonment” under the INA.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Calvillo Garcia’s deferred-adjudication disposition counts as a "conviction" for § 1229b(a) purposes	Deferred adjudication with community supervision is not a conviction	Deferred adjudication counts as a conviction under federal law	Not reached on merits (issue not exhausted before BIA); court noted precedent treats Texas deferred adjudication as a conviction
Whether court-ordered confinement in a SAFPF as a condition of community supervision is a "term of imprisonment" under INA §§ 1101(a)(43)(F) and 1101(a)(48)(B)	Confinement as a condition of probation is not a term of imprisonment	A court-ordered period of confinement, including SAFPF confinement as a probation condition, is a term of imprisonment	Held for the government: SAFPF confinement ordered by the court qualifies as a term of imprisonment, making the offense an aggravated felony and rendering applicant ineligible for cancellation of removal

Pichardo v. INS, 104 F.3d 756 (5th Cir.) (indeterminate sentence treated as sentence for the maximum term)
Ali v. Lynch, 814 F.3d 306 (5th Cir. 2016) (standards for appellate review of BIA legal conclusions)
Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) (agency interpretations entitled to deference when reasonable)
Mondragon-Santiago v. Holder, 564 F.3d 357 (5th Cir.) (probation without imprisonment does not create a term of imprisonment)
United States v. Landeros-Arreola, 260 F.3d 407 (5th Cir.) (sentence reduction to probation can eliminate original term of imprisonment)
Hernandez v. Holder, 760 F.3d 855 (8th Cir.) (periods of incarceration ordered as probation conditions fall within "term of imprisonment")
Ilchuk v. Attorney Gen. of U.S., 434 F.3d 618 (3d Cir.) (statutory language suggests "imprisonment" covers more than jail time)