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By The Houston Deportation Lawyers of the Law Offices of Steven Tuan Pham

General Background

Under the Illegal Immigration Reform And Immigrant Responsibility Act of 1996 (IIRAIRA), Congress defined certain crimes as aggrvated felonies for deportation and removal purposes. Among others, § 1101(a)(43)(F) of the Act defined an aggravated felony as “a crime of violence…for which the term of imprisonment is at least one year.” Previously, the 5th Circuit Court of Appeals consistently held that federal law counts Texas’s deferred adjudication of an imprisonment term as a conviction. 8 U.S.C. § 1101(a)(48)(A) and United States v. Valdez-Valdez, 143 F.3d 196, 203 (5th Cir. 1998) (holding that a Texas deferred adjudication “may be counted as ‘conviction for a felony’ under U.S.S.G. §2L1.2(b)(1)”).

Deferred Adjudication of Probation

The Court held in U.S. v. Mondragon-Santiago (5th Cir. 3/26/09) that a deferred adjudication of a probation, similar to a probation sentence without jail time, is not an "aggravated felony" under IIRAIRA, Section 1101(a)(43)(F); INA Section 101(a)43)(F) – Crime of Violence. The Court reasoned that deferred adjudication of probation is not within the definition of the “term of incarceration” under § 1101(a)(48(B) because there is no actual time served. As such, the term of the probation cannot be construed as an incarceration of at least 1 year or more as required to be an "aggravated felonny."

In U.S. v. Mondragon-Santiago, Appellant appealed from his 50-month sentence for unlawful reentry under 8 U.S.C. § 1326. Among two other grounds for appeal, the Appellant argued that he had been sentenced under the wrong subsection of § 1326. Prior to his reentry, the Appellant had been convicted of aggravated assault in Texas and received four years of “deferred adjudication probation.” The Appellant argued that this did not count as an aggravated felony under INA § 101(a)(43)(F). The 5th Ciruit Court of Appeals agreed.

The 5th Circuit Court distinguishes U.S. v. Mondragon-Santiago from its previous holdings in cases in which imprisonment that were imposed but then suspended verses cases in which probation setences were imposed without any imprisonment contemplated and then deferred such setences. See United States v. Banda-Zamora, 178 F.3d 728, 730 (5th Cir. 1999). Thus, when a court does not order a period of incarceration and then suspend it, but instead imposes probation directly, the conviction is not an “aggravated felony.” If the sentencing court orders imprisonment and then suspends it, the sentence counts under § 1101(a)(43)(F) for determining if the term of imprisonment is at least one year in duration. Vasquez-Balandran, 76 F.3d at 650–51. Conversely, if the sentencing court orders probation directly, then that conviction does not count as a term of imprisonment or as an aggravated felony. United States v. Herrera-Solorzano, 114 F.3d 48, 50 (5th Cir. 1997).

What Does All This Mean?

The 5th Circuit Court is known to be one of the most conservative circuit courts with respect to immigration and nationality law. This case is important in that it defined which type of convictions may be construed as an aggravated felony under IIRAIRA. If one's conviction is within the meaning of an aggravated felony, he or she will be removed from the U.S. and will not qualify for many waivers. In summary, the following is the current state of the law with respect to which conviction is considered an aggravated felony within the meaning of Section 1101(a)(43)(F) for violent crimes:

  • A guilty verdict by a judge or a jury with an imposed sentence of imprisonment of at least 1 year;

  • A plea of guilty or nolo contendre with an imposed sentence of imprisonment of at least 1 year;

  • A plea of guilty with a deferred adjudication of imprisonment of at least 1 year or more;

  • A plea of guilty with a deferred adjudication of imprisonment for some period of time and a probation, the combination of which is at least 1 year or more.

However, a probation sentence or a deferred adjudication of probation, in and of itself without any imprisonment term, is not an aggravated felony within the definition of IIRAIRA.

For further information regarding your prior conviction, or if you are under indictment or charges, be sure to contact the Houston Deportation Lawyers and the Houston Removal Defense Attorneys at the Law Offices of Steven Tuan Pham.. Our experienced Houston Removal Proceedings Attorneys will assist you in devising a strategy that may assist you in your removal defense at the Master Calendar Hearings and the Merit Hearings. Further, our Houston Immigration Attorneys work with our Houston Criminal Defense Attorneys to assist you through the criminal defense stages and ensure that your conviction will not have adverse immigration consequences. In some instances, the difference of 1 day in your sentencing may have grave consequences and may jeopardize your immigration status.


Unless specifically stated, attorneys are not certified in any specic areas of law with the Texas Board of Legal Specialization. Furthermore, immigration Law is a vast area of law and requires an immigration attorney with years of experience to understand the intricacies of the Immigration & Nationality Law. The information above is generalized based on current immigration law at the time this article was written. You should contact a Houston Immigration Deportation Defense Attorney at the Law Offices of Steven Tuan Pham. for more information. You are invited to contact the Houston Removal Defense Attorneys and the Woolands Deportation Lawyers at the Law Offices of Steven Tuan Pham today at 713-517-6645 or complete our Contact Form.