                  FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

JAMES BARIA CORPUZ,                    
                         Petitioner,       No. 09-70181
                 v.
                                           Agency No.
                                           A038-466-143
ERIC H. HOLDER   Jr., Attorney
General,                                     OPINION
                       Respondent.
                                       
        On Petition for Review of an Order of the
             Board of Immigration Appeals

                 Argued and Submitted
       October 14, 2011—San Francisco, California

                   Filed August 31, 2012

    Before: Procter Hug, Jr., Andrew J. Kleinfeld, and
           William A. Fletcher, Circuit Judges.

         Opinion by Judge William A. Fletcher;
              Dissent by Judge Kleinfeld




                            10417
10420                 CORPUZ v. HOLDER




                            COUNSEL

Jon Eric Garde, JEGLAW, LTD., Las Vegas, Nevada, for the
petitioner.

Michele Yvette Frances Sarko, U.S. DEPARTMENT OF
JUSTICE, Washington, D.C., for the respondent.


                            OPINION

W. FLETCHER, Circuit Judge:

   Petitioner James Baria Corpuz petitions for review of a
Board of Immigration Appeals (“BIA”) decision declaring
him ineligible for relief under former § 212(c) of the Immi-
gration and Nationality Act (“INA”) on the ground that he had
served a “term of imprisonment” of over five years for con-
viction of an aggravated felony. Corpuz contends that the BIA
improperly included in his “term of imprisonment” the entire
period that he spent in psychiatric pre-trial civil confinement
pending a determination of his competence to stand trial. We
grant Corpuz’s petition and remand for further proceedings.

                       I.    Background

   Corpuz is a Philippine citizen. He entered the United States
on an immigrant visa in Honolulu, Hawaii, in 1983. He was
then 16 years old. He and his family moved to Las Vegas,
Nevada, where he completed two years of college with a
major in biochemistry.
                       CORPUZ v. HOLDER                   10421
  Suffering from mental illness, Corpuz killed his mother on
Mother’s Day, May 14, 1989, by striking her with a hammer.
He was arrested and initially held in police custody in the psy-
chiatric unit of the Clark County Detention Center. On July
14, 1989, he was transferred to Lake’s Crossing Center
(“Lake’s Crossing”), a secure psychiatric facility in Nevada,
pending a determination of his competence to stand trial. He
was civilly confined at Lake’s Crossing for slightly over a
year. Corpuz was found incompetent to stand trial in Decem-
ber 1989. The following summer, he was found competent.
He was released from Lake’s Crossing on August 10, 1990,
and transferred back to law enforcement custody.

   On September 7, 1990, Corpuz was charged in Nevada
state court with first-degree murder. On January 18, 1991, an
amended information reduced the charge to voluntary man-
slaughter. Corpuz pled guilty to the reduced charge. He was
sentenced on February 27, 1991, to eight years (2,922 days)
in the Nevada State Penitentiary “with credit for time served
of 654 days.” Of those 654 days, 392 had been spent in civil
confinement at Lake’s Crossing. With 654 days credit for
time served subtracted from his 2,922-day sentence, Corpuz’s
post-conviction sentence was 2,268 days.

  An Immigration and Naturalization Service “Memorandum
of Investigation” in the record, dated April 4, 1991, states:

    SUBJECT was convicted on 2/27/91 in Las Vegas
    for the offense of Voluntary Manslaughter. He was
    sentenced to eight (8) years in the Nevada State
    Prison. SUBJECT immigrated to the United States
    on 12/22/83 through POE-HHW as a P5-3. SUB-
    JECT committed the above act on 5/14/89. No other
    criminal history could be found on SUBJECT. SUB-
    JECT is not amenable to deportation proceedings at
    this time.

  Corpuz was released from prison on August 1, 1994, after
having served 1,251 days of post-conviction imprisonment,
10422                 CORPUZ v. HOLDER
approximately 55 percent of his 2,268-day post-conviction
sentence. Good time credit accounts for the reduced time that
Corpuz actually served on his sentence, though it is unclear
from the record whether Corpuz received good time credit
only for the period he spent in post-conviction imprisonment
or whether he also received constructive good time credit for
the period he spent detained in jail and at Lake’s Crossing.
Corpuz was not charged with deportability upon his release
from prison.

   Corpuz married Carolyn Dubry, an American citizen, on
January 4, 1997. He and his wife have two citizen children:
Alexander, born on December 11, 1997, and Amelia, born on
September 22, 2000. Corpuz has worked steadily as an elec-
trician since at least September 2000. His wife has worked
steadily as a hair stylist since at least December 2000. (The
forms in the record do not ask about their employment prior
to 2000.) Corpuz and his wife own their own home in Las
Vegas.

   Corpuz was served with a Notice to Appear (“NTA”) in
September 2003. In his brief to the BIA, Corpuz recounted
that the NTA was served shortly after he “inquired of a mem-
ber of his church, a Department of Homeland Security
employee, . . . about becoming a U.S. citizen, conveying his
criminal history.”

   The NTA alleged that Corpuz was removable pursuant to
INA § 237(a)(2)(A)(iii) for having been convicted of an
aggravated felony as defined by INA § 101(a)(43)(F). At a
master hearing on October 9, 2003, Corpuz admitted the fac-
tual allegations in the NTA, conceded removability, and
requested relief under former INA § 212(c). The Immigration
Judge (“IJ”) found Corpuz removable and continued the hear-
ing to a later date. The government initially agreed that Cor-
puz was eligible to apply for a § 212(c) waiver, but later
changed its view.
                      CORPUZ v. HOLDER                   10423
   Section 212(c) provided, at the time relevant to Corpuz’s
case, that relief under the section was not available to “an[y]
alien who has been convicted of one or more aggravated felo-
nies and has served for such felony or felonies a term of
imprisonment of at least 5 years.” 8 U.S.C. § 1182(c) (1992).
The disputed question before the IJ was whether Corpuz had
served a “term of imprisonment” of at least five years for his
voluntary manslaughter conviction.

   The IJ concluded that all of the 392 days Corpuz had spent
in civil detention at Lake’s Crossing counted toward his “term
of imprisonment.” Based on this conclusion, the IJ held that
Corpuz served approximately five years and two months of
“imprisonment.” The IJ therefore held that Corpuz was a “re-
movable alien without access to relief from removal” and
ordered him removed.

   The BIA dismissed Corpuz’s appeal in a per curiam order.
The BIA found Corpuz ineligible for a § 212(c) waiver
because he had not established that § 212(c) contained “a
ground of inadmissibility that is comparable to the ground
upon which he [was] removable.” (The Supreme Court has
since abrogated the comparable-grounds approach employed
by the BIA, finding it arbitrary and capricious under the
Administrative Procedure Act, 5 U.S.C. § 706(2)(A). See
Judulang v. Holder, 132 S. Ct. 476, 487, 490 (2011).) Corpuz
filed a Petition for Review with this court.

   Meanwhile, Corpuz’s wife submitted a Form I-130 Petition
for Alien Relative. Corpuz then filed a Form I-485 Applica-
tion to Adjust Status, followed by a Motion to Reopen with
the BIA. The BIA denied Corpuz’s motion on the ground that
Corpuz had not presented any previously unavailable evi-
dence. Corpuz filed a second Petition for Review with this
court.

  We consolidated Corpuz’s two Petitions for Review. In a
memorandum disposition, we granted the petitions and
10424                    CORPUZ v. HOLDER
remanded to the BIA for consideration of Corpuz’s “claim of
eligibility for Gabryelsky relief,” including his “twin conten-
tions that he [is] eligible for adjustment of status and eligible
for a § 212(c) waiver.” See In re Gabryelsky, 20 I. & N. Dec.
750 (BIA 1993) (holding that an alien may apply for § 212(c)
relief in conjunction with an application for adjustment of sta-
tus).

   In an unpublished one-member decision, the BIA again dis-
missed Corpuz’s appeal and denied his Motion to Reopen.
The BIA rejected Corpuz’s contention that his time at Lake’s
Crossing was not part of his “term of imprisonment” within
the meaning of § 212(c). Corpuz again filed a Petition for
Review. That petition is now before us.

                   II.   Standard of Review

   Because Corpuz is removable by reason of having commit-
ted an aggravated felony, our review of his petition is limited
to constitutional claims and questions of law. See 8 U.S.C.
§ 1252(a)(2)(C)-(D). “Where as here, the BIA has conducted
a de novo review of the IJ’s decision, we review only the
decision of the BIA.” Hernandez v. Ashcroft, 345 F.3d 824,
832 (9th Cir. 2003). The BIA’s factual determinations are
reviewed for substantial evidence. Id.

   We review de novo the BIA’s resolution of questions of
law, “except to the extent that deference is owed to [the
BIA’s] interpretation of the governing statutes and regula-
tions.” Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1011
(9th Cir. 2006). Deferential review under Chevron U.S.A.,
Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837
(1984), is applicable only to agency interpretations set forth
as precedent. Garcia-Quintero, 455 F.3d at 1012 (“[T]he
‘essential factor’ in determining whether an agency action
warrants Chevron deference is its precedential value.”). We
do not apply Chevron deference to a single-member, unpub-
lished, non-precedential decision of the BIA if the decision
                      CORPUZ v. HOLDER                   10425
concerns a question of statutory construction on which the
BIA has never issued a published decision. Id. at 1012-14. In
such a case, the deference we afford the BIA’s decision “de-
pend[s] upon the thoroughness evident in its consideration,
the validity of its reasoning, its consistency with earlier and
later pronouncements, and all those factors which give it
power to persuade, if lacking power to control.” Id. at 1014
(quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).

                       III.   Discussion

            A.   Applicable Version of § 212(c)

   Former § 212(c), codified at 8 U.S.C. § 1182(c), originally
provided: “Aliens lawfully admitted for permanent resi-
den[ce] who temporarily proceeded abroad voluntarily and
not under an order of deportation, and who are returning to a
lawful unrelinquished domicile of seven consecutive years,
may be admitted in the discretion of the Attorney General
. . . .” 8 U.S.C. § 1182(c) (1991). The BIA interpreted this
provision beyond its literal language “to authorize any perma-
nent resident alien with a lawful unrelinquished domicile of
seven consecutive years to apply for a discretionary waiver
from deportation.” INS v. St. Cyr, 533 U.S. 289, 295 (2001)
(internal quotation marks and citation omitted); see also 8
C.F.R. § 1212.3(h)(1). But see Abebe v. Mukasey, 554 F.3d
1203 (9th Cir. 2009) (en banc).

   The Immigration Act of 1990 amended § 212(c), making
ineligible for relief under that section “an[y] alien who has
been convicted of an aggravated felony and has served a term
of imprisonment of at least 5 years.” Pub. L. No. 101-649,
§ 511(a), 104 Stat. 4978, 5052. The Immigration Technical
Corrections Act of 1991 then amended this language to “an[y]
alien who has been convicted of one or more aggravated felo-
nies and has served for such felony or felonies a term of
imprisonment of at least 5 years.” Pub. L. No. 102-232,
§ 306(a)(10), 105 Stat. 1733, 1751 (codified as amended at 8
10426                  CORPUZ v. HOLDER
U.S.C. § 1182(c) (1992)). Congress specified that the 1991
amendment was to take effect as if included as a provision in
the Immigration Act of 1990. Pub. L. No. 102-232, § 310(1),
105 Stat. 1733, 1759.

   In 1996, Congress amended § 212(c) to preclude from
relief aliens who had committed certain crimes, regardless of
the length of the term of imprisonment imposed. See Antiter-
rorism and Effective Death Penalty Act of 1996, Pub. L. No.
104-132, § 440(d), 110 Stat. 1214, 1277. Later that year, in
the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (“IIRIRA”), Congress finally repealed § 212(c)
entirely. Pub. L. No. 104-208, § 304(b), 110 Stat. 3009, 3597.

   In St. Cyr, the Supreme Court held that “depriving remov-
able aliens of consideration for § 212(c) relief produces an
impermissible retroactive effect for aliens who . . . were con-
victed pursuant to a plea agreement at a time when their plea
would not have rendered them ineligible for § 212(c) relief.”
St. Cyr, 533 U.S. at 320; see also 8 C.F.R. § 1212.3 (provid-
ing procedures for implementing St. Cyr). Aliens who would
have been eligible for § 212(c) relief at the time they entered
a plea agreement thus remain eligible even after IIRIRA’s
passage. Under St. Cyr, we look to § 212(c) as it existed at the
time of a petitioner’s plea.

   [1] Corpuz was convicted pursuant to a plea agreement in
1991, after the 1990 and 1991 amendments to, but before the
wholesale repeal of, § 212(c). Under St. Cyr, Corpuz remains
eligible for § 212(c) relief to the extent he would have been
when he entered his plea agreement. There is no dispute that
Corpuz has been convicted of an aggravated felony. He is eli-
gible for § 212(c) relief if he served less than a five-year
“term of imprisonment” for that conviction, as that phrase was
understood in 1991.

        B.   Calculation of “Term of Imprisonment”

  [2] The question before us is whether all or part of the time
Corpuz spent in pre-trial civil psychiatric confinement should
                       CORPUZ v. HOLDER                    10427
be included in his “term of imprisonment” under § 212(c).
The question is one of first impression in this circuit. It is a
question of statutory interpretation over which we have juris-
diction.

   “In attempting to determine the meaning of a statute, we
look first to the plain meaning . . . and give effect to that
meaning where fairly possible.” Gomez-Lopez v. Ashcroft,
393 F.3d 882, 885 (9th Cir. 2005) (alteration in original)
(internal quotation marks and citation omitted); see also
United States v. Rosales, 516 F.3d 749, 758 (9th Cir. 2008)
(“Statutory interpretation begins with the plain language of
the statute.” (internal alteration, quotation marks, and citation
omitted)). The meaning of “term of imprisonment” in
§ 212(c) depends on the meaning of “imprisonment.”

   [3] We do not conclude the word “imprisonment” has a
“plain meaning,” such that we are compelled to follow that
meaning. But the word does have a common meaning that
influences our understanding of the word as it is used in
§ 212(c). The common meaning of “imprisonment” is incar-
ceration in a prison, jail, or other penal institution. See, e.g.,
United States v. Miller, 547 F.3d 1207, 1213 (9th Cir. 2008)
(incarceration in county jail work release program constituted
part of defendant’s term of imprisonment where defendant
remained under the authority of the Bureau of Prisons);
United States v. Gonzales, 506 F.3d 940, 948 (9th Cir. 2007)
(en banc) (Ikuta, J., concurring in part and dissenting in part)
(under the Sentencing Guidelines, “when a court sentences a
defendant to 30-days jail time, it is a ‘term of imprison-
ment’ ”); United States v. Morgan, 390 F.3d 1072, 1074 (8th
Cir. 2004) (observing that the Sentencing Guidelines “de-
fine[ ] a sentence of imprisonment as a sentence of incarcera-
tion”). This common meaning of “imprisonment” does not
include civil confinement or detention. See United States v.
Baker, 45 F.3d 837, 844 (4th Cir. 1995) (though “the involun-
tary [civil] commitment of an individual is a substantial cur-
tailment of that individual’s liberty,” it “is not as great as the
10428                 CORPUZ v. HOLDER
curtailment inherent in criminal imprisonment,” and is not
punitive).

   In Allen v. Illinois, 478 U.S. 364 (1986), the Supreme Court
was at pains to distinguish civil from criminal confinement.
Petitioner had argued that indefinite confinement in a psychi-
atric facility after a civil proceeding in which he had been
declared a “sexually dangerous person” under Illinois law was
criminal confinement, triggering application of the Fifth
Amendment privilege against self-incrimination. The Court
disagreed:

    [T]he State has disavowed any interest in punish-
    ment, provided for the treatment of those it commits,
    and established a system under which committed
    persons may be released after the briefest time in
    confinement. The Act thus does not appear to pro-
    mote either of the traditional aims of punishment —
    retribution and deterrence.

Id. at 370 (internal quotation marks and citation omitted); see
also Kansas v. Hendricks, 521 U.S. 346, 361-69 (1997)
(involuntary commitment proceeding not a criminal proceed-
ing); Matter of K, 3 I. & N. Dec. 48 (BIA 1947) (commitment
to mental institution following conviction not imprisonment
for purposes of § 19 of the Immigration Act of 1917).

  [4] We have specifically held that civil confinement in a
psychiatric facility to determine competence to stand trial is
not the same as post-conviction criminal confinement. We
wrote in Makal v. Arizona, 544 F.2d 1030, 1035 (9th Cir.
1976):

    Petitioner had been charged with a capital crime and
    for his own protection was hospitalized so that a
    trial, if it occurred at all, would take place only when
    he was mentally competent to participate and protect
    his own interests. He was not confined for purposes
                       CORPUZ v. HOLDER                   10429
    of punishment, and we cannot find that his stay at
    the hospital was a part of his punishment for the
    commission of a crime.

Because petitioner’s pre-trial confinement had been civil and
was not custody related to his guilt, we held that the Equal
Protection Clause did not require that petitioner be given
credit against his criminal sentence for the time he had spent
in the psychiatric facility. Id.

   [5] Since civil confinement or detention in a psychiatric
facility for purposes of determining competence to stand trial
is not “imprisonment,” as that term is commonly understood,
it could be reasonably argued that none of the 392 days that
Corpuz spent at Lake’s Crossing should be counted as part of
his “term of imprisonment.” Indeed, considered purely as a
textual matter, this is the most sensible reading of the term
“imprisonment” in § 212(c). Our analysis would end here had
Corpuz only been civilly confined at Lake’s Crossing and the
question was whether he had been “imprisoned” there. How-
ever, that is not the case, for Corpuz was given a criminal sen-
tence, and was given credit against that sentence for the time
he spent at Lake’s Crossing. Where a defendant receives
credit against a criminal sentence for time spent in civil con-
finement, it is obvious that reading § 212(c) without taking at
least some of this time into consideration would frustrate the
purpose of the “term of imprisonment” provision. But we
should not forget that, in so treating time spent in civil con-
finement, we are violating the common meaning of “impris-
onment.” We should violate that common meaning only
insofar as necessary to serve the clear purpose of the five-year
provision of § 212(c).

   Section 212(c) uses the five-year “imprisonment” period as
a proxy for the seriousness of the crime committed by an alien
who is seeking § 212(c) relief. See Moreno-Cebrero v. Gon-
zales, 485 F.3d 395, 400 (7th Cir. 2007). By focusing on time
actually served, the five-year provision also takes into account
10430                  CORPUZ v. HOLDER
an alien’s behavior in prison, as good behavior will allow the
alien to accumulate good time credit and thus obtain an earlier
release. If the crime is very serious and the alien’s prison con-
duct is poor — and if, as a result, the time served as the “term
of imprisonment” is five years or more — the alien is statu-
torily ineligible for relief under § 212(c). If the crime is not
very serious and the alien’s prison conduct is good — and if,
as a result, the time served is less than five years — the alien
is statutorily eligible for relief.

  It is commonplace for judges to give credit against a crimi-
nal sentence for time served in pre-trial detention. If we were
to ignore such time in calculating a defendant’s “term of
imprisonment” under § 212(c), our calculation would not
accurately reflect the seriousness of the alien’s crime and the
nature of his prison conduct.

   Consider two cases in which similarly situated defendants
have committed the same crime. The judge sentences the first
defendant to ten years’ imprisonment, with credit for four
years of civil confinement in a psychiatric facility pending a
determination of competence to stand trial. In this case, the
time actually served in prison, given the accumulation of
prison good time credit, will almost certainly be less than five
years. The judge sentences the second defendant to ten years
in prison straight up. This defendant spent no time in a psy-
chiatric facility prior to his conviction. Even assuming the
second defendant, while imprisoned, accumulates good time
credit at the same rate as the first defendant, the time actually
served in prison will almost certainly be more than five years.

   If we consider only the time spent in prison in the first
defendant’s case, we frustrate the purpose of the five-year
“term of imprisonment” provision of § 212(c). Given the
length of time actually served by the second defendant, we
know that he is statutorily ineligible for § 212(c) relief due to
the seriousness of his crime. Because the first defendant com-
mitted the same crime, received the same sentence, and accu-
                       CORPUZ v. HOLDER                    10431
mulated good time credit at the same rate while in prison, he
should also be statutorily ineligible for § 212(c) relief. Yet if
we cannot count any of the time he spent in the psychiatric
facility as part of his “term of imprisonment,” we would be
compelled to conclude that he is eligible. Congress could not
have intended such a result. “[W]e are not required to inter-
pret a statute in a formalistic manner when such an interpreta-
tion would produce a result contrary to the statute’s purpose
or lead to unreasonable results.” United States v. Combs, 379
F.3d 564, 569 (9th Cir. 2004).

   [6] In order to achieve the statutory purpose of the five-
year “term of imprisonment” provision in § 212(c), we there-
fore must count, in some manner, the time a defendant spends
in pre-trial civil psychiatric confinement if that time is cred-
ited against the defendant’s sentence. The question is how this
time should be counted. We conclude that time spent in civil
psychiatric confinement that is credited against a defendant’s
sentence should be counted in a manner that allows us to
approximate, as closely as possible, the time the defendant
would have served in prison had he never been in civil psy-
chiatric confinement. This means that we should determine a
constructive good time credit for the period spent in civil con-
finement based on the degree to which the defendant accumu-
lated good time credit while in prison. The period spent in
pre-trial psychiatric confinement should be calculated as part
of the defendant’s “term of imprisonment” only after this con-
structive good time credit is taken into account.

   For a simple illustration, consider the first defendant
described above. He was sentenced to ten years, with credit
for four years spent in civil psychiatric confinement. Receiv-
ing credit for four years already served reduced the remaining
time on his sentence to six years. Assume that the defendant
was unable to accumulate good time credit while he was in
civil psychiatric confinement, but that he accumulated two
years of good time credit while in prison, such that he was
released after serving four years of imprisonment. Four years
10432                  CORPUZ v. HOLDER
is two-thirds of the six years which he was sentenced to serve
in post-conviction imprisonment. In order to treat the time
spent in civil psychiatric confinement in a manner that
approximates the time the defendant would have spent in
prison had he simply been sentenced to ten years in prison
without credit for time served, we should count two-thirds of
the four years he spent in psychiatric confinement as part of
his “term of imprisonment” for purposes of § 212(c). Two-
thirds of four years (48 months) is 32 months. Thirty-two
months should therefore be added to the four years the defen-
dant actually spent in prison. The total “term of imprison-
ment,” for purposes of § 212(c) would thus be six years and
eight months.

   There is nothing in the text of § 212(c) that prescribes the
above manner of accounting for credited time spent in civil
psychiatric confinement. However, we have already moved
beyond the bare text of § 212(c), for if we consider only the
text, the common meaning of the word “imprisonment” would
compel us to conclude that none of the time a defendant spent
in psychiatric civil confinement counts as part of that defen-
dant’s term of “imprisonment.” As between these two imper-
fect readings of the “term of imprisonment” provision of
§ 212(c), we prefer the reading that serves the obvious pur-
pose of the provision.

                        C.   Objections

  There are several possible objections to our manner of cal-
culating time spent in pre-trial civil psychiatric confinement.
We take them in turn.

    1. Difference Between Pre-trial Civil Psychiatric
  Confinement and Pre-trial Incarceration in Jail or Prison

   Several circuits have held that time spent in non-civil pre-
trial incarceration — that is, in ordinary pre-trial incarceration
— constitutes part of a defendant’s “term of imprisonment”
                        CORPUZ v. HOLDER                    10433
for purposes of § 212(c). See Palmer v. Att’y Gen., 421 F.
App’x 181, 183 n.3 (3d Cir. Apr. 5, 2011) (unpublished);
Moreno-Cebrero, 485 F.3d at 395 (7th Cir. 2007); Spina v.
Dep’t of Homeland Sec., 470 F.3d 116, 125 (2d Cir. 2006);
see also Bosquest v. Ashcroft, 2005 WL 1278272, at *5
(S.D.N.Y. May 27, 2005); Jackson v. Ashcroft, 2003 WL
22272593, at *4-5 (D. Conn. Sep. 28, 2003); Gordon v. Ash-
croft, 283 F. Supp. 2d 435, 436, 439-40 (D. Mass. 2003); Sal-
dana v. Demore, 2002 WL 1000168, at *2-3 (N.D. Cal. May
3, 2002). We have not decided in this circuit whether ordinary
pre-trial incarceration should be counted as part of a defen-
dant’s “term of imprisonment” under § 212(c). However, in
Arreguin-Moreno v. Mukasey, 511 F.3d 1229, 1230 (9th Cir.
2008), we addressed the similar issue of whether “time spent
in pre-trial detention, which is credited as time served in a
sentence imposed after conviction, is considered to be con-
finement as a result of a conviction within the meaning of 8
U.S.C. § 1101(f)(7).” Id. at 1230. We held that such time
should be counted. Id.; see also In re Valdovinos, 18 I. & N.
Dec. 343 (BIA 1982) (same).

   None of the above cases addressed the issue of good time
credit. We are willing to assume that, for purposes of
§ 212(c)’s “term of imprisonment” provision, constructive
good time credit should not be awarded for ordinary pre-trial
incarceration. There are at least two good reasons for such an
assumption. The first is linguistic. Ordinary pre-trial incarcer-
ation is typically spent in a jail or other penal institution; con-
finement in a jail or similar institution is commonly
understood to be a form of “imprisonment”; and the text of
§ 212(c) tells us that time spent in “imprisonment” is part of
the five-year period. The second is practical. Largely because
of speedy trial rules, time spent in ordinary pre-trial incarcera-
tion is limited and somewhat predictable. See 18 U.S.C.
§ 3161; Doggett v. United States, 505 U.S. 647, 662 (1992)
(the Speedy Trial Clause is designed “to prevent oppressive
pretrial incarceration”).
10434                  CORPUZ v. HOLDER
   Neither reason applies to pre-trial civil confinement to
determine competence to stand trial. First, as already dis-
cussed, the common understanding of the word “imprison-
ment” does not include civil confinement. If we were to use
the common understanding of the term, we would not count
such confinement at all. Counting such time, but with an
allowance for constructive good time credit, allows us to
serve, as near as may be, the purpose of § 212(c). Second, the
length of pre-trial civil confinement to determine competence
to stand trial is unlimited and unpredictable. It is often quite
long, sometimes lasting many years. See Sell v. United States,
539 U.S. 166, 180 (2003) (recognizing that pre-trial psychiat-
ric confinement to restore competence to stand trial may be
lengthy).

   Finally, ordinary pre-trial incarceration is common, and
Congress almost certainly considered it when enacting the
five-year “term of imprisonment” provision of § 212(c). In
contrast, pre-trial psychiatric confinement to determine com-
petence to stand trial is comparatively unusual. There is noth-
ing in the language or history of § 212(c) to indicate that
Congress had civil psychiatric confinement in mind when it
adopted the five-year “imprisonment” provision. There is cer-
tainly nothing to suggest that Congress would have intended,
if it had considered the question, to count the entire period of
a civil confinement, when credited against a criminal sen-
tence, as part of the “term of imprisonment.”

        2.   Definition of “Imprisonment” in IIRIRA

   In 1996, as part of IIRIRA, Congress specifically defined
“term of imprisonment” for the first time, including in the
definition “the period of incarceration or confinement ordered
by a court.” Pub. L. No. 104-208, § 322, 110 Stat. 3009,
3009-628 (codified at 8 U.S.C. § 1101(a)(48)(B)). This defini-
tion indicates that, as of 1996, civil confinement ordered by
a court is part of a defendant’s “term of imprisonment.” How-
ever, under St. Cyr, we are required to look to the law as it
                       CORPUZ v. HOLDER                    10435
existed in 1991. “If we are to be consistent in applying
§ 212(c) as it existed prior to IIRIRA, as St. Cyr dictates for
persons in [Corpuz’s] situation, we should not use a definition
that was not then part of the statute.” Moreno-Cebrero, 485
F.3d at 398. Further, we note that IIRIRA, which contains the
new definition, entirely repealed § 212(c). We do not believe
that we should interpret a statute using a definition that is con-
tained in an act that repeals that very statute.

                3.   Imprecision of Calculation

   The calculation of the amount of constructive good time
credit to which a defendant is entitled for purposes of deter-
mining the length of his “term of imprisonment” under
§ 212(c) may be somewhat imprecise, depending on the
nature of a prison’s good time regulations. A calculation of a
“term of imprisonment” using all of the time spent in civil
confinement, by contrast, would be both easy and precise.
However, we believe a fair approximation is superior to a pre-
cise but unfair calculation. Counting a period spent in pre-trial
civil psychiatric confinement as part of a defendant’s “term of
imprisonment” without providing for any constructive good
time credit for that period would result in an arbitrary and
unfair distinction between mentally ill defendants who must
be restored to competence to stand trial, and other defendants,
similarly situated in all other respects, who are immediately
competent to stand trial.

   While the required calculation may be somewhat imprecise,
it is not based on speculation. We are not required to guess
how a petitioner would have behaved in prison or how much
good time he would have received. We know how he
behaved, and we know how much prison good time he
received. This known behavior and good time are the basis for
a calculation of the good time he would have received had he
spent his entire period of confinement in true “imprisonment.”
10436                 CORPUZ v. HOLDER
              D.   Application to Present Case

   If we calculate Corpuz’s “term of imprisonment” under
§ 212(c) in the manner proposed by the government, we
would add to the length of time Corpuz actually served in
post-conviction imprisonment the full 654 days of credit for
time served that he received at sentencing, including the 392
days credit he received for time spent at Lake’s Crossing.
This appears to result in a total term of imprisonment of about
five years and two months. If this were the proper calculation,
Corpuz would be ineligible for § 212(c) relief. However, this
appears to be the proper calculation only if Corpuz has
already received constructive good time credit for the period
he spent at Lake’s Crossing.

   Unfortunately, on the current record we cannot confidently
approximate the amount of time Corpuz would have actually
served in post-conviction imprisonment had he never spent
time at Lake’s Crossing, because we do not know whether the
Nevada Department of Corrections has already granted him
constructive good time credit for the periods he spent in pre-
trial psychiatric confinement and in ordinary pre-trial deten-
tion. The parties dispute whether Nevada defendants, such as
Corpuz, who are given credit for time served at sentencing,
are also given constructive good time credit for the period
they spend in pre-trial confinement. There is nothing in the
record that allows us, or our dissenting colleague, to resolve
this dispute.

   [7] Because we cannot confidently approximate how much
time Corpuz would have actually served in prison had he
never spent time in pre-trial psychiatric confinement, we grant
Corpuz’s Petition for Review and remand for a determination
of the amount of constructive good time credit to which Cor-
puz is entitled (and may or may not have received) for the
period of his civil confinement at Lake’s Crossing.

   We GRANT the Petition for Review and REMAND for
further proceedings consistent with this opinion.
                             CORPUZ v. HOLDER                          10437
KLEINFELD, Senior Circuit Judge, dissenting:

  I respectfully dissent.

   The majority confuses the unknown with the unknowable.
It coins the new term “constructive good time,” under which
immigration judges are now required to quantify the unknow-
able: how much good time a prisoner would have received,
had he been in prison instead of where he actually was. This
calculation is impossible—not difficult, impossible.

   Corpuz concluded a Mother’s Day quarrel with his mother
by beating her head in with a hammer. After a lengthy period
in jail, and then in a psychiatric facility to determine his com-
petency to stand trial, he was found competent despite his
schizophrenia. He pleaded guilty to voluntary manslaughter
pursuant to a plea bargain. The sentencing judge credited the
pre-conviction psychiatric confinement against Corpuz’s
prison sentence. Corpuz was free three and a half years after
he pleaded guilty, but more than five years after his confine-
ment began. Under the eligibility statute at issue, a petitioner
is ineligible for relief from removal if he served “a term of
imprisonment of at least 5 years.”1 Corpuz did.
  1
   Immigration and Nationality Act § 212(c) (codified at 8 U.S.C.
§ 1182(c) (1992)) states in full:
      (c) Nonapplicability of subsection (a)
      Aliens lawfully admitted for permanent residence who temporar-
      ily proceeded abroad voluntarily and not under an order of depor-
      tation, and who are returning to a lawful unrelinquished domicile
      of seven consecutive years, may be admitted in the discretion of
      the Attorney General without regard to the provisions of subsec-
      tion (a) of this section (other than paragraphs (3) and (9)(C)).
      Nothing contained in this subsection shall limit the authority of
      the Attorney General to exercise the discretion vested in him
      under section 1181(b) of this title. The first sentence of this sub-
      section shall not apply to an alien who has been convicted of
      one or more aggravated felonies and has served for such felony
      or felonies a term of imprisonment of at least 5 years.
(emphasis added).
10438                    CORPUZ v. HOLDER
   I agree with the majority that when a defendant receives
credit against a criminal sentence for time spent in jail or psy-
chiatric confinement before trial, the credited time should be
treated as part of the five-year “term of imprisonment” under
the statute. Our sister circuits that have addressed the issue
also agree.2 Treating this time credited against prison time as
part of the five-year term of imprisonment is fair because the
time was actually served in confinement and reduced the
amount of time Corpuz would have otherwise spent in prison.
The number is precise and not subject to dispute. This
approach does not require the immigration judge, when deter-
mining eligibility, to quantify speculation. I also agree with
the majority that no “constructive good time” should apply to
credited pretrial confinement in jail.

   The majority goes off the tracks with its novel concept,
“constructive good time.” There is no such thing in Nevada
law (or anywhere else, so far as I know). Under this concept,
an immigration judge must calculate how much good time a
prisoner would have earned while he was in psychiatric con-
finement before trial, had he been in prison instead.

   The majority begs the question with its phrase, “we believe
a fair approximation is superior to a precise but unfair calcula-
tion.” Obviously “fair” is superior to “unfair.” But if no
approximation is possible, then only speculation is possible,
and speculation is unfair, arbitrary, and capricious. There is
no way to know how much “constructive good time” Corpuz
would have earned had he been in prison instead of a psychi-
atric facility.

   Under Nevada good time law, for each month a prisoner
serves, he is entitled to a ten-day deduction from his sentence
if he had no serious infractions that month and properly per-
  2
   Moreno-Cebrero v. Gonzalez, 485 F.3d 395, 398 (7th Cir. 2007); Spina
v. Dep’t of Homeland Sec., 470 F.3d 116, 128 (2d Cir. 2006).
                            CORPUZ v. HOLDER                          10439
formed his assigned duties.3 If he behaves himself, a Nevada
prisoner earns his good time, but only as he goes, not up front.4
Even if we assume that Corpuz would have behaved perfectly
if he had been in prison rather than in a psychiatric facility,
it would have taken him six years to earn enough ten-day
credits to get out early on his eight-year sentence.5 To get
below the five-year eligibility period, Corpuz would have had
to obtain extra credit good time by doing things such as earn-
ing his G.E.D.6 or participating successfully in other programs.7
  3
   Nev. Rev. Stat. § 209.446(1) states in full:
      Every offender who is sentenced to prison for a crime committed
      on or after July 1, 1985, but before July 17, 1997, who has no
      serious infraction of the regulations of the Department, the terms
      and conditions of his or her residential confinement, or the laws
      of the State recorded against the offender, and who performs in
      a faithful, orderly and peaceable manner the duties assigned to
      the offender, must be allowed:
      (a) For the period the offender is actually incarcerated under sen-
      tence;
      (b) For the period the offender is in residential confinement; and
      (c) For the period the offender is in the custody of the Division
      of Parole and Probation of the Department of Public Safety pur-
      suant to NRS 209.4886 or 209.4888,
      a deduction of 10 days from the offender’s sentence for each
      month the offender serves.
   4
     See Nev. Rev. Stat. §§ 209.432-209.451; Hunt v. Warden, 903 P.2d
826 (Nev. 1995).
   5
     His sentence was 8 years, or 2920 days. Assuming he earned a 10 day
deduction each month, it would have taken him 6 years to earn 720 days
of good time (6 years x 12 months x 10 days = 720 days). This number,
plus the time he already served (6 years x 365 days = 2190 days), gets him
to 2910 days, just 10 days under his 8 year sentence (2920 days).
   6
     Nev. Rev. Stat. § 209.446(2) states in part:
      In addition to the credits allowed pursuant to this subsection, an
      offender is entitled to the following credits for educational
      achievement:
      (a) For earning a general educational development certificate, 30
      days.
10440                      CORPUZ v. HOLDER
   Discretion plays a prominent role in the award and deduc-
tion of good time credits. The Director may award good time
for “diligent and responsible”8 behavior, and “exceptional
meritorious service.”9 If a prisoner tests positive for alcohol
or a controlled substance, the prisoner forfeits “all deductions
earned by the offender before commission of the violation” or
“such part of those deductions as the director considers just.”10
So a prisoner caught with pruno (a prisoner-manufactured
alcoholic beverage) may lose all the good time he has earned
over five years, or one year of good time, or ten days, or none.
Good time is so discretionary, and so dependent on an
inmate’s individual conduct while in prison, that application
of a formula is inherently and necessarily arbitrary and capri-
cious. A formula is unfair to prison inmates who really try to
do all the things that will earn them extra good time. Because
no fair approximation can be made, all a remand in this case
can do is cause delay and produce an arbitrary outcome.

   The majority concedes that good time, constructive or oth-
erwise, does not apply to pretrial jail time. There is no justifi-
cation for inventing “constructive good time” for pretrial
psychiatric confinement but not pretrial jail time. The major-
ity argues first that jail time is shorter because of the Speedy

      (b) For earning a high school diploma, 60 days.
      (c) For earning an associate degree, 90 days.
  7
     Nev. Rev. Stat. § 209.446(3) (“The Director may allow not more than
10 days of credit each month for an offender who participates in a diligent
and responsible manner in a center for the purpose of making restitution,
program for reentry of offenders and parolees into the community, conser-
vation camp, program of work release or another program conducted out-
side of the prison.”).
   8
     Id.
   9
     Nev. Rev. Stat. § 209.446(4) (“The Director may allow not more than
90 days of credit each year for an offender who engages in exceptional
meritorious service.”).
   10
      Nev. Rev. Stat. § 209.367(5).
                       CORPUZ v. HOLDER                    10441
Trial Act,11 and second that jail is more similar to prison than
psychiatric confinement. The first argument lacks merit
because a very short time, even a day, may make all the dif-
ference to eligibility under the statute, and the states follow
their own speedy trial rules, not the federal Speedy Trial Act.
The second argument cuts against the majority’s position
because the greater similarity of jail to prison implies that if
good time is not credited for jail time, there is even less justi-
fication for inventing it for something even less like prison.

   When a sentencing judge credits against a prison sentence
time spent not in prison, whether in jail or a psychiatric facil-
ity, the prisoner gets the benefit of less time in prison. He also
gets the burden of not being able to earn good time during the
period when he was not in prison. He takes the bad with the
good. The only fair thing we can do is treat pretrial jail time
and psychiatric confinement the same way. Treating them dif-
ferently, through the novel concept of “constructive good
time,” is illogical and unfair because it requires precise calcu-
lation of the inherently speculative and incalculable. “[W]e
must . . . not look for the same degree of exactness in all our
studies, but only for as much as the subject-matter in each
case allows . . . .”12 The majority’s remand for a determination
of the amount of constructive good time that Corpuz might
have earned had he been in prison when he was not is pre-
cisely the error of attempting a more precise calculation than
the subject matter allows.




  11
   18 U.S.C. § 3161.
  12
   Aristotle, The Nicomachean Ethics 76-77 (J.A.K. Thomson trans.,
Penguin Books 1976) (1953).
