    Case: 16-60015    Document: 00514139617      Page: 1   Date Filed: 08/31/2017




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit
                                 No. 16-60015                             FILED
                                                                    August 31, 2017
                                                                     Lyle W. Cayce
                                                                          Clerk
JORGE V. CALVILLO GARCIA,

                                            Petitioner,

versus

JEFFERSON B. SESSIONS, III, U.S. Attorney General,

                                            Respondent.



                      Petition for Review of an Order of
                      the Board of Immigration Appeals




Before SMITH, OWEN, and HIGGINSON, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      An 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 sec-
tions of the Immigration and Nationality Act (“INA”). Because we agree with
the BIA’s construction, we deny Calvillo Garcia’s petition for review.

                                       I.
      The Attorney General may cancel removal of a permanent resident alien
who (1) has been lawfully admitted for permanent residence for at least five
    Case: 16-60015     Document: 00514139617      Page: 2   Date Filed: 08/31/2017



                                  No. 16-60015
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 con-
sidered 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).

      Calvillo Garcia, a native and citizen of Mexico, was admitted to the
United States as a lawful permanent resident in 1997. In 2008, he was con-
victed 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.”

      In 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

                                        2
     Case: 16-60015            Document: 00514139617          Page: 3   Date Filed: 08/31/2017



                                            No. 16-60015
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 1101(a)(43)(F).

          Calvillo 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 punish-
ment 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.

                                                   II.
          Although we generally review its legal conclusions de novo, 1 “the BIA is
entitled to Chevron deference 2 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. 3 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. 4

          On appeal, Calvillo Garcia advances two theories. First, he claims that
he was not “convicted” of aggravated assault within the meaning of Section



          1   See Ali v. Lynch, 814 F.3d 306, 309 (5th Cir. 2016).
          2   See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843−44
(1984).
          3   Ali, 814 F.3d at 309–10 (quoting INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999)).
       Orellana-Monson v. Holder, 685 F.3d 511, 517 (5th Cir. 2012) (internal quotation
          4

marks and citation omitted).
                                                   3
     Case: 16-60015       Document: 00514139617         Page: 4     Date Filed: 08/31/2017



                                       No. 16-60015
1229b(a) because the adjudication of his case was deferred and he was sen-
tenced to community supervision. We lack jurisdiction to consider this issue,
because it was not raised before the BIA. 5 If we were to address it, however,
we would recognize that a Texas deferred adjudication constitutes a
conviction. 6

       Calvillo 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). 7 But we have never addressed whether
confinement to a SAFPF as a condition of community supervision qualifies as
a term of imprisonment under the INA. 8

       We 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). 9 Calvillo Garcia was confined by court order: He was
required to remain in a SAFPF until he received permission to leave. In fact,



       5 See Wang v. Ashcroft, 260 F.3d 448, 452–53 (5th Cir. 2001) (stating that “an alien’s
failure to exhaust his administrative remedies serves as a jurisdictional bar to our consider-
ation of the issue.”).
       6See, e.g., United States v. Mondragon-Santiago, 564 F.3d 357, 368 (5th Cir. 2009)
(“Federal law counts Texas’s deferred adjudication probation as a conviction.”).
       7See, e.g., Mondragon-Santiago, 564 F.3d at 368–69; United States v. Banda-Zamora,
178 F.3d 728, 730 (5th Cir. 1999).
       8 We have, however, held that confinement in a drug treatment facility constitutes
“imprisonment” under the Sentencing Guidelines. See, e.g., United States v. Mendez, 560
F. App’x 262, 264–65 (5th Cir. 2014) (per curiam); United States v. Chavez, 476 F. App’x 786,
789 (5th Cir. 2012) (per curiam).
       9 See Ilchuk v. Att’y Gen. of U.S., 434 F.3d 618, 623 (3d Cir. 2006) (“[T]he statute’s
disjunctive phrasing . . . suggests that [C]ongress intended for ‘imprisonment’ to cover more
than just time spent in jail.”).
                                              4
     Case: 16-60015       Document: 00514139617         Page: 5    Date Filed: 08/31/2017



                                      No. 16-60015
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 com-
munity supervision, that is irrelevant. As the Eighth Circuit explained in a
case with similar facts, “nothing in the statutory text . . . indicate[s] that
Congress intended to exclude periods of incarceration ordered as a condition of
probation from the definition of ‘term of imprisonment.’” 10

       This case is distinguishable from Mondragon-Santiago, 564 F.3d at 368,
in which the defendant had been sentenced to probation without an accom-
panying term of imprisonment. Here, the sentencing court imposed a term of
imprisonment as a condition of Calvillo Garcia’s community supervision.

       Likewise, United States v. Landeros-Arreola, 260 F.3d 407 (5th Cir.
2001), is distinguishable. There, the sentence was reduced from four years to
probation under a Colorado statute that allows courts to reduce the sentences
of defendants who successfully complete a prisoner rehabilitation program. Id.
at 411–14. But we were careful to explain that the sentence had been “reduced”
such that “nothing remained of the original term of imprisonment for the court
to suspend.”     Id. at 414.      Calvillo Garcia’s sentence was not reduced, so
Landeros-Arreola has no bearing on his case.

       Because Calvillo Garcia was sentenced to a “term of imprisonment of at
least one year,” the BIA did not err in determining that his aggravated-assault
conviction was an aggravated felony that made him ineligible for cancellation
of removal. 11 The petition for review is DENIED.




       10  Hernandez v. Holder, 760 F.3d 855, 860 (8th Cir. 2014). In Hernandez, id. at 857,
an alien who had been sentenced to three years of probation, with the condition that he serve
the first year in jail, sought to cancel his removal.
       11 We need not consider whether the BIA’s interpretation of “term of imprisonment”
is entitled to Chevron deference.
                                             5
