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
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 Immigration and Nationality Act (“INA”) on the ground that he had

served a “term of imprisonment” of over five years for conviction 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.

10420 CORPUZ v. HOLDER
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 psychiatric 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 December 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 manslaughter. 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. SUBJECT committed the above act on 5/14/89. No other

criminal history could be found on SUBJECT. SUBJECT 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,

CORPUZ v. HOLDER 10421
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 electrician 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 member 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 factual allegations in the NTA, conceded removability, and

requested relief under former INA § 212(c). The Immigration

Judge (“IJ”) found Corpuz removable and continued the hearing to a later date. The government initially agreed that Corpuz was eligible to apply for a § 212(c) waiver, but later

changed its view.

10422 CORPUZ v. HOLDER
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 felonies 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 “removable 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 Application 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 evidence. 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

CORPUZ v. HOLDER 10423
remanded to the BIA for consideration of Corpuz’s “claim of

eligibility for Gabryelsky relief,” including his “twin contentions 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 status).

In an unpublished one-member decision, the BIA again dismissed 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 committed 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 regulations.” 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, unpublished, non-precedential decision of the BIA if the decision

10424 CORPUZ v. HOLDER
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 “depend[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 residen[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 permanent 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 felonies 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

CORPUZ v. HOLDER 10425
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 Antiterrorism 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 removable aliens of consideration for § 212(c) relief produces an

impermissible retroactive effect for aliens who . . . were convicted 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 (providing 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 eligible 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

10426 CORPUZ v. HOLDER
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 jurisdiction.

“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 incarceration 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 imprisonment’ ”); United States v. Morgan, 390 F.3d 1072, 1074 (8th

Cir. 2004) (observing that the Sentencing Guidelines “define[ ] a sentence of imprisonment as a sentence of incarceration”). 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 involuntary [civil] commitment of an individual is a substantial curtailment of that individual’s liberty,” it “is not as great as the

CORPUZ v. HOLDER 10427
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 psychiatric 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 punishment, 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 promote 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 proceeding); 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

10428 CORPUZ v. HOLDER
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. However, that is not the case, for Corpuz was given a criminal sentence, 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 confinement, 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 confinement, we are violating the common meaning of “imprisonment.” 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. Gonzales, 485 F.3d 395, 400 (7th Cir. 2007). By focusing on time

actually served, the five-year provision also takes into account

CORPUZ v. HOLDER 10429
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 conduct is poor — and if, as a result, the time served as the “term

of imprisonment” is five years or more — the alien is statutorily 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 criminal 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 psychiatric 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 committed the same crime, received the same sentence, and accu10430 CORPUZ v. HOLDER
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 interpret a statute in a formalistic manner when such an interpretation 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 fiveyear “term of imprisonment” provision in § 212(c), we therefore must count, in some manner, the time a defendant spends

in pre-trial civil psychiatric confinement if that time is credited 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 psychiatric confinement. This means that we should determine a

constructive good time credit for the period spent in civil confinement based on the degree to which the defendant accumulated 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 constructive 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. Receiving 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

CORPUZ v. HOLDER 10431
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). Twothirds of four years (48 months) is 32 months. Thirty-two

months should therefore be added to the four years the defendant actually spent in prison. The total “term of imprisonment,” 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 defendant’s term of “imprisonment.” As between these two imperfect readings of the “term of imprisonment” provision of

§ 212(c), we prefer the reading that serves the obvious purpose of the provision.

C. Objections

There are several possible objections to our manner of calculating 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 pretrial incarceration — that is, in ordinary pre-trial incarceration

— constitutes part of a defendant’s “term of imprisonment”

10432 CORPUZ v. HOLDER
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. Ashcroft, 283 F. Supp. 2d 435, 436, 439-40 (D. Mass. 2003); Saldana 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 defendant’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 confinement 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 incarceration is typically spent in a jail or other penal institution; confinement 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 incarceration 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”).

CORPUZ v. HOLDER 10433
Neither reason applies to pre-trial civil confinement to

determine competence to stand trial. First, as already discussed, the common understanding of the word “imprisonment” 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 psychiatric 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 competence to stand trial is comparatively unusual. There is nothing 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 certainly 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 sentence, 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 definition indicates that, as of 1996, civil confinement ordered by

a court is part of a defendant’s “term of imprisonment.” However, under St. Cyr, we are required to look to the law as it

10434 CORPUZ v. HOLDER
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 contained 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 determining 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 precise 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.”

CORPUZ v. HOLDER 10435
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 pretrial psychiatric confinement and in ordinary pre-trial detention. 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 Corpuz 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.

10436 CORPUZ v. HOLDER
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 unknowable: 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 competency 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 confinement 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 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 without regard to the provisions of subsection (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 subsection 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). 

CORPUZ v. HOLDER 10437
I agree with the majority that when a defendant receives

credit against a criminal sentence for time spent in jail or psychiatric 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 determining 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 confinement 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 calculation.” 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 psychiatric 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 per2Moreno-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). 

10438 CORPUZ v. HOLDER
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 earning his G.E.D.6

 or participating successfully in other programs.7

3Nev. 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 sentence; 

(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 pursuant 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). 

5His 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). 

6Nev. 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. 

CORPUZ v. HOLDER 10439
Discretion plays a prominent role in the award and deduction 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 capricious. 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 otherwise, does not apply to pretrial jail time. There is no justification for inventing “constructive good time” for pretrial

psychiatric confinement but not pretrial jail time. The majority 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. 

7Nev. 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, conservation camp, program of work release or another program conducted outside of the prison.”). 

8

Id.

9Nev. 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.”). 

10Nev. Rev. Stat. § 209.367(5). 

10440 CORPUZ v. HOLDER
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 difference 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 justification 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 facility, 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 differently, through the novel concept of “constructive good

time,” is illogical and unfair because it requires precise calculation 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 precisely the error of attempting a more precise calculation than

the subject matter allows.

1118 U.S.C. § 3161. 

12Aristotle, The Nicomachean Ethics 76-77 (J.A.K. Thomson trans.,

Penguin Books 1976) (1953). 

CORPUZ v. HOLDER 10441