               UNITED STATES COURT OF APPEALS

                   FOR THE FIRST CIRCUIT

                                        

No. 92-2169
No. 93-1294

            RUI FERNANDO DA CONCEICAO RODRIGUES,

                        Petitioner,

                             v.

          IMMIGRATION AND NATURALIZATION SERVICE,

                        Respondent.

                                        

           ON PETITIONS FOR REVIEW OF ORDERS OF 
              THE BOARD OF IMMIGRATION APPEALS

                                        

                           Before

                    Breyer, Chief Judge,
                                       
              Friedman,* Senior Circuit Judge,
                                             
                 and Stahl, Circuit Judge.
                                         

                                        

Lenore Glaser for petitioner.
            
Donald  E. Keener,  Attorney,  Office  of Immigration  Litigation,
                
Civil Division, Department  of Justice,  with whom  Stuart M.  Gerson,
                                                                
Assistant  Attorney   General,  and  Robert  Kendall,  Jr.,  Assistant
                                                     
Director,  Office  of  Immigration  Litigation,  Civil Division,  U.S.
Department of Justice, were on brief for respondent.

                                        

                        May 24, 1993
                                        

                
*Of the Federal Circuit, sitting by designation.

          BREYER,  Chief Judge.   Federal law  classifies as
                              

"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),
                                                     

   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.,
                                          

he is "excludable")  if he has been "convicted of  2 or more

offenses  .  .  .  for  which  the  aggregate  sentences  to
                                                            

confinement actually imposed were 5 years  or more . . .  ."
                            

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.   
                     

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.   
                        

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.
                                                    

Ct.  719,  724-25  (1992)   (orders  denying  reopening  are

reviewable);  Thomas v.  INS, 976  F.2d  786, 789  (1st Cir.
                            

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. &amp; N.
                                                

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
                                         

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
                                                      

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.,
                                                           

Fonseca-Leite v. INS, 961  F.2d 60, 62 (5th Cir.  1992) (two
                    

consecutive  three  year  sentences amounted  to  six years,

regardless  of the fact  that only  two years  were actually

served);  Matter of Castro,  19 I. &amp;  N. Dec.  692, 695 (BIA
                          

1988)   (similar);   United  States   ex   rel.   Sirtie  v.
                                                        

Commissioner of Immig.,  6 F.2d 233, 234 (E.D.N.Y.  1925) (a
                      

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
                                                        

F.2d 821, 822 (2d Cir.  1930) (similar); Petsche v. Clingan,
                                                           

273  F.2d 688, 691 (10th Cir. 1960) (similar, under the 1952

INA); United States ex rel. Dentico v. Esperdy, 280 F.2d 71,
                                              

72 n.1  (2d  Cir.  1960)  (similar); see  also  Campbell  v.
                                                        

Commonwealth, 339 Mass. 695, 697, 162 N.E.2d 262, 263 (1959)
            

(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.,
                                                            

Inc. v.  Natural Resources  Defense Council, Inc.,  467 U.S.
                                                 

837, 843-45 (1984); Mayburg v.  Secretary of Health &amp;  Human
                                                            

Servs., 740 F.2d 100, 105-06 (1st Cir. 1984); Molina v. INS,
                                                           

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
                                                  

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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