
USCA1 Opinion

	




                            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"                                         -2-                                          2             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                                         -3-                                          3             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.                                           ___  _____________             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                                         -4-                                          4             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. &  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                                         -5-                                          5             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 &  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                                         -6-                                          6             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.                                         -7-                                          7                       For  these  reasons, the  order  of  the Board  is             vacated, and the case is remanded for further proceedings.                       So ordered.                       ___________                                         -8-                                          8
