UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-2169
No. 93-1294
RUI FERNANDO DA CONCEICAO RODRIGUES,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
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ON PETITIONS FOR REVIEW OF ORDERS OF
THE BOARD OF IMMIGRATION APPEALS
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Before
Breyer, Chief Judge,
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Friedman,* Senior Circuit Judge,
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and Stahl, Circuit Judge.
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Lenore Glaser for petitioner.
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Donald E. Keener, Attorney, Office of Immigration Litigation,
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Civil Division, Department of Justice, with whom Stuart M. Gerson,
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Assistant Attorney General, and Robert Kendall, Jr., Assistant
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Director, Office of Immigration Litigation, Civil Division, U.S.
Department of Justice, were on brief for respondent.
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May 24, 1993
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*Of the Federal Circuit, sitting by designation.
BREYER, Chief Judge. Federal law classifies as
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"deportable" an "alien . . . convicted" of unlawfully
"possessing . . . a firearm." Immigration and Nationality
Act of 1952, Pub. L. 82-414, 66 Stat. 163, as amended (INA),
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241(a)(2)(C), 8 U.S.C. 1251(a)(2)(C). The law
nonetheless permits the Attorney General to "adjust[]" the
"status" of a "deportable" alien "to that of an alien
lawfully admitted for permanent residence," but only if,
among other things, the alien "is admissible to the United
States for permanent residence . . . ." INA 245(a)(2), 8
U.S.C. 1255(a)(2). And, an alien is not admissible (i.e.,
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he is "excludable") if he has been "convicted of 2 or more
offenses . . . for which the aggregate sentences to
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confinement actually imposed were 5 years or more . . . ."
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INA 212(a)(2)(B), 8 U.S.C. 1182(a)(2)(B) (emphasis
added).
The petitioner, convicted of a firearms offense,
Mass. Gen. L. ch. 140, 129C, is deportable. INA
241(a)(2)(C), 8 U.S.C. 1251(a)(2)(C). He has applied for
a status adjustment. INA 245(a), 8 U.S.C. 1255(a).
But, the Attorney General has refused to consider his status
adjustment application because, in her view, he has two
convictions with "sentences to confinement actually imposed"
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totalling more than "5 years." Hence, he is not
"admissible." See INA 212(a)(2)(B), 8 U.S.C.
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1182(a)(2)(B). For this reason (and without deciding
whether petitioner might be excludable for some other
reason, see generally INA 212(a)(2), 8 U.S.C.
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1182(a)(2)), the Board of Immigration Appeals denied the
petitioner's request to reopen his deportation proceedings.
Petitioner now asks us to review the Board's decision not to
reopen (embodied in two orders). See INS v. Doherty, 112 S.
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Ct. 719, 724-25 (1992) (orders denying reopening are
reviewable); Thomas v. INS, 976 F.2d 786, 789 (1st Cir.
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1992) (per curiam) (same). Having conducted that review, we
conclude that the rather special legal circumstances present
in this case do not permit the Board to find that the
sentences "actually imposed" on petitioner add up to five
years. Hence, petitioner's case falls outside the scope of
the "excludability" provision on which the Board relied, INA
212(a)(2)(B), 8 U.S.C. 1182(a)(2)(B). We therefore
vacate its decision.
The parties agree that the sentence "actually
imposed" for unlicensed possession of a firearm (the
conviction that made appellant "deportable") amounted to
thirty days. They disagree, however, about a different
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sentence, imposed after a 1986 state court conviction for
assault with intent to rob, Mass. Gen. L. ch. 265, 20.
Originally (on June 12, 1986), the state court sentenced
petitioner "to Massachusetts Correctional Institution,
Concord for the term of ten (10) years." But, in July 1992,
the sentencing judge revoked his earlier Concord sentence
and entered an order resentencing petitioner, which order
was entered on the docket sheet as follows:
Sentence imposed on June 12, 1986 is
revoked; deft. sentenced to the
Massachusetts Correctional Institution,
Conco[r]d, for the term of ten (10)
years and deemed to have been served;
the court on imposing said sentence
ordered that the Deft. be deemed to have
served -1709-days of said sentence.
The parties agree that we are to treat this order as if it
were the original sentence. See Matter of J--, 6 I. & N.
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Dec. 562, 565, 569 (BIA 1955). They also agree that the
petitioner was released from confinement at Concord after
1709 days. Finally, they agree that, if one reads the 1992
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language as having "actually imposed" a "sentence[] to
confinement" of 1709 days, then petitioner's "aggregate
sentences to confinement actually imposed" amount to about
three months less than five years. (1709 days plus the 30
day firearm sentence amounts to 1739 days; five years
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contain 1826 days). They disagree, however, about the
meaning of this 1992 sentencing order.
In the Government's view, the sentence "actually
imposed" (retroactively) in 1992 is a sentence to
confinement for "ten years," not 1709 days. The order
itself says that the petitioner is "sentenced to the
Massachusetts Correctional Institution, Conco[r]d, for the
term of ten (10) years." Moreover, courts and the Board of
Immigration Appeals have held that a "sentence[] to
confinement actually imposed" means the maximum sentence
that a court imposes, even though an offender might serve
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less than this maximum sentence (because time earned for
good behavior, probation, or other forms of discretionary
relief might lead to his earlier release). See, e.g.,
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Fonseca-Leite v. INS, 961 F.2d 60, 62 (5th Cir. 1992) (two
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consecutive three year sentences amounted to six years,
regardless of the fact that only two years were actually
served); Matter of Castro, 19 I. & N. Dec. 692, 695 (BIA
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1988) (similar); United States ex rel. Sirtie v.
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Commissioner of Immig., 6 F.2d 233, 234 (E.D.N.Y. 1925) (a
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reformatory sentence to a term which "shall not exceed . . .
three years" was a three year sentence for purposes of the
1917 Immigration Act, notwithstanding the power of the
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parole board to discharge the prisoner at an early stage);
United States ex rel. Paladino v. Commissioner of Immig., 43
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F.2d 821, 822 (2d Cir. 1930) (similar); Petsche v. Clingan,
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273 F.2d 688, 691 (10th Cir. 1960) (similar, under the 1952
INA); United States ex rel. Dentico v. Esperdy, 280 F.2d 71,
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72 n.1 (2d Cir. 1960) (similar); see also Campbell v.
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Commonwealth, 339 Mass. 695, 697, 162 N.E.2d 262, 263 (1959)
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(under Massachusetts law, the length of a Concord sentence
is its maximum term). Finally, the Government reminds us
that we owe its interpretation of the statutory words
("sentences to confinement actually imposed") a considerable
degree of respect, particularly where, as here, the
interpretation concerns an interstitial matter, related to
the administration of a complex statutory scheme, in respect
to which the agency is expert. See, e.g., Chevron, U.S.A.,
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Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
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837, 843-45 (1984); Mayburg v. Secretary of Health & Human
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Servs., 740 F.2d 100, 105-06 (1st Cir. 1984); Molina v. INS,
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981 F.2d 14, 20 (1st Cir. 1992).
Despite these arguments, we disagree with the
Government's conclusion. If the 1986 sentence had not been
revoked, and petitioner had merely been released on parole
in July 1992, the Government's authorities might prove
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determinative. But, as the Government concedes, this case
instead hinges purely on the interpretation of the 1992
sentencing order. That order, we concede, speaks of the
"sentence" as if it were a sentence to confinement for ten
years. But, it then says that the defendant is "deemed to
have served -1709- days" of the sentence, and that the "ten
year" sentence is "deemed to have been served." Once one
adds the undisputed fact (apparently known to the sentencing
judge) that the petitioner did serve 1709 days, the order
simply imposes that 1709 days as the term of confinement.
That is to say, if we leave all the "deem[ing]" aside, the
order requires the defendant to serve 1709 days (which he
already served), and, at the same time, it leaves the state
without any legal authority to confine him for even one day
more. Where there is neither a logical, nor a legal, nor a
practical possibility of the order permitting any
confinement beyond 1709 days, how can one say that such an
order "actually impose[s]" a sentence for ten years? To
paraphrase President Lincoln's apocryphal remark about
calling a sheep's tail a "leg," the order calls the "1709
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days" a "term of ten years," but simply calling it a ten
year term cannot make it one. We have found no case,
judicial or administrative, suggesting the contrary.
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For these reasons, the order of the Board is
vacated, and the case is remanded for further proceedings.
So ordered.
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