JORGE V. CALVILLO GARCIA, Petitioner,
JEFFERSON B. SESSIONS, III, U.S. Attorney General, Respondent. v.
for Review of an Order of the Board of Immigration Appeals
SMITH, OWEN, and HIGGINSON, Circuit Judges.
E. SMITH, Circuit Judge.
immigration judge ("IJ") denied Jorge Calvillo
Garcia's application for cancellation of removal. The
Board of Immigration Appeals ("BIA") affirmed.
Calvillo Garcia claims that the BIA misconstrued the relevant
sections of the Immigration and Nationality Act
("INA"). Because we agree with the BIA's
construction, we deny Calvillo Garcia's petition for
The Attorney General may cancel removal of a permanent
resident alien who (1) has been lawfully admitted for
permanent residence for at least five years, (2) has resided
in the United States for at least seven years after having
been admitted in any status, and (3) has not been convicted
of an aggravated felony. See 8 U.S.C. §
1229b(a). The INA defines "aggravated felony" to
include "a crime of violence . . . for which the term of
imprisonment [is] at least one year." 8 U.S.C. §
1101(a)(43)(F). A term of imprisonment "include[s] 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." § 1101(a)(48)(B). "[A]n indeterminate
sentence is to be considered a sentence for the maximum term
imposed." Pichardo v. INS, 104 F.3d 756, 759
(5th Cir. 1997). An alien may apply for cancellation of
removal to the IJ overseeing his removal proceedings.
See 8 C.F.R. § 1240.11(a)(1).
Garcia, a native and citizen of Mexico, was admitted to the
United States as a lawful permanent resident in 1997. In
2008, he was convicted of possessing marihuana in violation
of Section 481.121(b)(1) of the Texas Health and Safety Code.
In 2009, he pleaded guilty of aggravated assault in violation
of Section 22.02(a)(2) of the Texas Penal Code and was
sentenced to five years of deferred-adjudication community
supervision. As a condition of that sentence, he was ordered
to "serve an indeterminate term of confinement and
treatment of not more than one (1) year or less than 180 days
in a substance abuse treatment facility operated by the Texas
Department of Criminal Justice . . . and obey all rules and
regulations of the facility."
early 2015, the Department of Homeland Security commenced
removal proceedings against Calvillo Garcia and charged him
with inadmissi-bility under 8 U.S.C. §
1182(a)(2)(A)(i)(I) and (II) as an alien who has been
convicted of a crime involving moral turpitude and as an
alien who has been convicted of a controlled-substance
violation. Calvillo Garcia admitted to being removable as an
alien convicted of a controlled-substance violation but
denied being removable as an alien convicted of a crime
involving moral turpitude. He applied for cancellation of
removal under Section 1229b(a). The IJ rejected his
application and ordered his removal, explaining that he was
ineligible for relief because he had been convicted of
aggravated assault, an aggravated felony per Section
Garcia appealed to the BIA, claiming that he had not been
convicted of an aggravated felony. The BIA noted that the
only issue on appeal was whether his sentence of up to one
year in a substance-abuse felony punishment facility
("SAFPF") constituted a "term of
imprisonment" under Section 1101(a)(48)(B). The BIA
found that it did and issued a precedential opinion
dismissing the appeal.
we generally review its legal conclusions de novo,
"the BIA is entitled to Chevron
deference when it interprets a statutory provision
of the INA and gives the statute 'concrete meaning
through a process of case-by-case adjudication, '"
so long as the BIA's opinion is
precedential. Under Chevron, courts afford
agency interpretations of statutes "controlling weight
unless they are arbitrary, capricious, or manifestly contrary
to the statute" or Congress has "unambiguously
expressed" a contrary intent.
appeal, Calvillo Garcia advances two theories. First, he
claims that he was not "convicted" of aggravated
assault within the meaning of Section 1229b(a) because the
adjudication of his case was deferred and he was sentenced to
community supervision. We lack jurisdiction to consider this
issue, because it was not raised before the
If we were to address it, however, we would recognize that a
Texas deferred adjudication constitutes a
Garcia's second theory is that the BIA erred in finding
that a sentence of up to one year in a SAFPF as a condition
of community supervision constitutes a "term of
imprisonment." When a court puts a defendant directly on
community supervision, it has not imposed a term of
imprisonment under Section 1103(a)(43)(F) and
(48)(B). But we have never addressed whether
confinement to a SAFPF as a condition of community
supervision qualifies as a term of imprisonment under the
agree with the BIA. Its opinion is consistent with the plain
meaning of Section 1101(a)(48)(B), which defines "term
of imprisonment" to include a "period of
incarceration or confinement ordered by a
court." § 1101(a)(48)(B) (emphasis
added). Calvillo Garcia was confined by court
order: He was required to remain in a SAFPF until he received
permission to leave. In fact, the SAFPF system exists to
"confine and treat" individuals. Tex. Gov't
Code § 493.009(a). Though Calvillo Garcia's
confinement was a condition of community supervision, that is
irrelevant. As the Eighth Circuit explained in a case with
similar facts, "nothing in the statutory text . . .
indicate[s] that ...