In Chapter Two, we discussed criminal dispositions in terms of whether they include a "finding of guilt" and imposition of punishment, and thereby constitute convictions under immigration law. Next we will look at the immigration consequences that can arise from the length of a sentence. For immigration purposes, a sentence is “deemed to include the 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.” ⁹⁶ Common sentence dispositions under Washington law have the following immigration effect under this definition.

• Deferred Sentence: Imposition of sentence suspended, custody (jail time) ordered as a condition of probation.

The sentence is the amount of custody time ordered, regardless of the fact that technically no sentence was “imposed.”

• Suspended Sentence: Sentence imposed, all or part of the execution of sentence suspended.

The entire sentence imposed is the sentence for immigration purposes, regardless of the fact that the defendant will not serve all or part of the sentence.

• Probation.

Probation alone is never a sentence to confinement, although as stated above if the judge orders the noncitizen to spend time in jail as a condition of probation, the time ordered is a sentence.Clark is convicted of gross misdemeanor theft. Imposition of sentence is suspended (a.k.a. a “deferred sentence”), he is placed on two years probation and ordered to spend 20 days in jail as a condition of probation. He has a sentence imposed of 20 days for immigration purposes.Karen is convicted of gross misdemeanor theft. She is sentenced to 365 days in jail, with the execution of 363 days suspended, and given two years probation (a.k.a. a “suspended sentence”). For immigration purposes, the imposed sentence is deemed to be one year. As a result, Karen has been convicted of an aggravated felony “theft offense.” If her defender had succeeded in simply having the sentence be 364 days with 362 suspended, she would have avoided a conviction for an aggravated felony.

• The time imposed after a probation or parole violation is included within the definition of “sentence imposed.” For example, a defendant who initially receives a sentence of less than one year, but then violates his probation or parole and is sentenced to an additional term of imprisonment that, when added to the original term, brings the total sentence imposed to over one year, will be considered to have a one-year sentence imposed for purposes of determining aggravated felon status. ⁹⁷

• Probation and Eligibility for Good Moral Character and Naturalization.

While probation is not a sentence imposed, it has some effect on noncitizen defendants. Naturalization to U.S. citizenship will not be granted to an applicant who is on probation or parole on the day of the naturalization interview. Probation or parole during any part of the time for which good moral character must be established can be viewed as a negative factor in a discretionary finding that the applicant lacks good moral character, although it cannot be the sole basis for that finding. ⁹⁸

• Suspended Imposition of Sentence—i.e., Deferred Sentences.

Suspended imposition of sentence (a.k.a. a deferred sentence) occurs when the court delays imposition of any sentence and imposes probation directly upon the defendant. No sentence to confinement is imposed; the sentencing scheme is, in effect, suspended until probation is completed or revoked. Like a suspended execution of sentence (a.k.a. a suspended sentence), a deferred sentence may be revoked if the defendant violates any probationary condition. But unlike a suspended execution of sentence, since no actual sentence has been imposed, the judge may impose any sentence up to the maximum possible sentence allowed by the statute of conviction if defendant violates the terms of the deferred sentence.99 In the case of a deferred sentence, a court may impose a period of incarceration as a condition of probation and the court may, upon revocation of a deferred sentence, impose an incarcerative term greater than the time served as a condition of the probation. For example, a court may order a defendant to serve five days incarceration as condition of probation under a deferred sentence. If the defendant breaks a condition of probation the court has the discretion to impose the maximum possible sentence under the statute, minus the five days already served. The court would not be limited to imposing a sentence of five days.¹⁰⁰ In a suspended imposition of sentence (a.k.a. deferred sentence) since the court does not impose any actual period of incarceration, but rather suspends the imposition of the whole sentencing process, a suspended imposition of sentence does not trigger immigration consequences that are contingent upon a sentence. The period for which the imposition of sentence is suspended does not constitute a period of incarceration under 8 USC 1101(a)(48)(B). However, often times the court will impose a period of incarceration as a condition of probation in connection with a suspended imposition of sentence. Any period of confinement or jail time specified as a condition of probation will constitute a sentence imposed for immigration purposes under 8 USC 1101(a)(48)(B). Additionally, in virtually all cases, entry of a guilty plea under a deferred sentence procedure will constitute a conviction in perpetuity for immigration purposes, even if the defendant complies with the conditions of probation and is subsequently permitted to withdraw his or her guilty plea. See Chapter Two: Convictions Under Immigration Law.

• Suspended Execution of Sentence—i.e., Suspended Sentence.

Suspension execution of sentence occurs when the court has imposed a definite sentence, but the defendant is released on probation for all or part of the sentence. Like the suspended imposition of sentence, if the conditions of probation are not fulfilled, the court may revoke the probation and re-incarcerate the defendant to complete whatever part of the sentence has not yet been served. A judge revoking a suspended sentence may not impose a penalty greater than the penalty previously suspended, minus any incarcerative time already served.¹⁰¹ For immigration purposes, the sentence will be the total amount of time, regardless of any suspended time.

⁹⁶ 8 USC § 1101(a)(48)(B); INA § 101(a)(48)(B).

⁹⁷ United States v. Jimenez, 258 F.3d 1120 (9th Cir. 2001).

⁹⁸ 8 C.F.R. § 316(1)(c)(1).

⁹⁹ Bellevue v. Hard, 84 Wn. App. 453 (1997).

¹⁰⁰ Id.

¹⁰¹ RCW 3.50.340, 3.66.069, 35.20.255; State v. Mortrud, 89 Wn. 2d 720 (1978); State v. Monday, 85 Wn.Bellevue, supra n. 99.