In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4105
DIMAS ANTONIO MORENO-CEBRERO,
Petitioner,
v.
ALBERTO R. GONZALES, Attorney General
of the United States,
Respondent.
____________
On Petition to Review an Order
of the Board of Immigration Appeals.
No. A11-125-754
____________
ARGUED SEPTEMBER 21, 2006—DECIDED MAY 10, 2007
____________
Before BAUER, CUDAHY, and WOOD, Circuit Judges.
WOOD, Circuit Judge. Dimas Antonio Moreno-Cebrero
is facing removal from the United States because he has
been convicted of an aggravated felony. Although he
recognizes that this is indeed a valid ground of removal,
Moreno is seeking the opportunity to apply for a waiver
under § 212(c) of the Immigration and Nationality Act
(INA), 8 U.S.C. § 1182(c) (1994). The Immigration Judge
(IJ) found him ineligible because § 212(c) bars relief for
an individual “convicted of one or more aggravated felonies
and [who] has served for such a felony or felonies a term
of imprisonment of at least 5 years.” Moreno, she found,
2 No. 05-4105
met both of those conditions. The Board of Immigration
Appeals (BIA) affirmed without opinion.
In assessing the question whether Moreno met the five-
year requirement, the IJ decided that the statute required
her to include the time that Moreno spent in jail await-
ing trial. Moreno was not granted bail before trial, and in
calculating the amount of time he was to remain in
custody after his conviction, the Bureau of Prisons (BOP)
credited him for the time he had already served. The sole
issue before this court is thus one of statutory interpreta-
tion: Is detention prior to a criminal conviction counted
as part of a term of imprisonment in determining the
eligibility of a removable alien under former INA § 212(c)?
We conclude, reviewing this question of law de novo, that
the answer is yes, and we therefore deny the petition for
review.
I
Although Moreno is a citizen of Mexico, he has been
a lawful resident of the United States since November 11,
1963. The first 27 years of his residence passed without
incident. Unfortunately for Moreno, the 28th year did not.
On August 15, 1991, he was arrested and charged with
being a member of a drug conspiracy. He later pleaded
guilty of conspiracy to possess a controlled substance
with intent to distribute in violation of 21 U.S.C. § 846. On
June 22, 1992, he was sentenced to 80 months’ incarcera-
tion, to be followed by 60 months of supervised release.
On June 6, 1997, the day of Moreno’s release from
federal prison, he was served with a Notice to Appear
(NTA) by the then-Immigration and Naturalization Ser-
vice (whose responsibilities for this function are now
performed by the Immigration and Customs Enforcement
section of the Department of Homeland Security (DHS)).
No. 05-4105 3
The NTA charged Moreno with removability under INA
§ 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), because his
criminal conviction was for an aggravated felony, and
§ 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i), because his
conviction was a violation of federal law relating to a
controlled substance. Moreno admitted the factual allega-
tions contained in the NTA at a removal hearing conducted
on February 24, 1998, and the IJ found him removable.
Although Moreno applied for a waiver under § 212(c), the
IJ initially denied his request because, at that time, the
BIA had taken the position that this relief had been
precluded by the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA) and the Illegal Immigra-
tion Reform and Immigrant Responsibility Act of 1996
(IIRIRA). She ordered that Moreno be deported to Mexico.
While Moreno’s case was on appeal to the BIA, however,
the Supreme Court decided INS v. St. Cyr, 533 U.S. 289
(2001). In St. Cyr, the Court held that even after the
changes made in AEDPA and IIRIRA, discretionary re-
lief under § 212(c) “remains available for aliens . . . whose
convictions were obtained through plea agreements and
who, notwithstanding those convictions, would have been
eligible for § 212(c) relief at the time of their plea under
the law then in effect.” 533 U.S. at 326. See also Valere v.
Gonzales, 473 F.3d 757, 758 (7th Cir. 2007). Given the
ruling in St. Cyr, the BIA remanded Moreno’s case for
further proceedings and ordered the immigration court to
consider his eligibility for relief under that section.
As the BIA noted in its January 4, 2002, remand order,
the threshold issue on remand was whether Moreno met
the statutory criteria for eligibility under § 212(c). The
literal terms of the statute address only admission to the
United States, not removal (or deportation). It gives the
Attorney General discretion to admit “[a]liens lawfully
admitted for permanent residence who temporarily
proceeded abroad voluntarily and not under an order of
deportation, and who are returning to a lawful unre-
4 No. 05-4105
linquished domicile of seven consecutive years,” notwith-
standing their excludability under INA § 212(a), 8 U.S.C.
§ 1182(a). Section 212(c) has not, however, been under-
stood as a law limiting the Attorney General’s discretion
to this class of readmissions. “[C]ourts and the BIA have
held § 212(c) relief is available to deportees who are
similarly situated to inadmissibles, i.e., are being deported
on a ground that substantially corresponds to a ground for
inadmissibility under § 212(a).” Valere, 473 F.3d at 762
(emphasis in original). See also Francis v. INS, 532 F.2d
268, 272 (2d Cir. 1976); Matter of Silva, 16 I. & N. Dec. 26
(BIA 1976). In order to be eligible for the waiver, the
alien must not have been “convicted of one or more ag-
gravated felonies” and have “served for such felony or
felonies a term of imprisonment of at least 5 years.”
§ 212(c).
The critical question here is whether Moreno served a
“term of imprisonment” of five years. There is no disagree-
ment about the amount of time that he spent in either pre-
conviction detention or post-conviction incarceration. The
parties dispute only whether the pre-conviction detention
counts toward the five-year period of time. After his
arrest on August 15, 1991, Moreno remained in detention
until his conviction and sentencing on June 22, 1992, at
which time the BOP credited him with 312 days of time
served. From the date of his sentencing until his release
on June 6, 1997, he served just under five years—a total of
1810 days or 258 weeks and four days. (By our calcula-
tions, this was 16 days short of five years.) If the detention
prior to conviction is part of Moreno’s term of imprison-
ment, he spent more than five years behind bars and is
statutorily ineligible for relief; if it is not included, he
served less than five years. Whether or not that would
help him is unclear. As we explain below in more detail,
since 1996 the INA has defined a “term of imprisonment”
to include “the period of incarceration or confinement
ordered by a court of law regardless of any suspension of
No. 05-4105 5
the imposition or execution of that imprisonment or
sentence in whole or in part.” INA § 101(a)(48), 8 U.S.C.
§ 1101(a)(48). As that definition was added after Moreno’s
guilty plea, however, we disregard it here and proceed
to the merits of Moreno’s argument.
II
Because Moreno presents a straightforward question of
law, we have jurisdiction over his petition for review. See
INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D), as amended
by the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat.
231. Here, the BIA affirmed the IJ’s decision without an
opinion; we therefore review the IJ’s analysis directly.
Balogun v. Ashcroft, 374 F.3d 492, 498 (7th Cir. 2004).
Because the central question is one of statutory
interpretation—the meaning of “term of imprisonment”—
the government argues that the opinion of the IJ is
entitled to deference. This argument, however, fails to
appreciate exactly what the BIA has done here. The BIA
itself emphasizes in its orders of affirmance without
opinion that “[such an order] does not necessarily imply
approval of all of the reasoning of that decision, but does
signify the Board’s conclusion that any errors in the
decision of the immigration judge or the Service were
harmless or nonmaterial.” 8 C.F.R. § 1003.1(e)(4)(ii). The
government points to no earlier decision of the BIA on
which the Board might have been relying here. Even
assuming that we would defer to “the BIA’s interpretation
of the statute it administers,” see Bazan-Reyes v. I.N.S.,
256 F.3d 600, 605 (7th Cir. 2001), in this case the BIA has
effectively informed us that it has chosen not to say
anything about the IJ’s reasoning. We therefore proceed
to the question at hand without any thumb on the scale
in favor of the IJ’s decision.
The question whether detention prior to conviction
should count toward the term of imprisonment used to
6 No. 05-4105
bar an alien from receiving relief under § 212(c) is a
question of first impression in the federal courts of ap-
peals. See, e.g., Edwards v. I.N.S., 393 F.3d 299, 303 (2d
Cir. 2004) (“It remains an open question in this circuit
whether time accrued in pretrial detention should be
counted in calculating whether the five year bar applies.”).
We consider first whether we ought to look at the new
definition of the phrase “term of imprisonment” in the
INA. As we noted earlier, INA § 101(a)(48)(B) defines
“term of imprisonment” as “the period of incarceration or
confinement ordered by a court of law regardless of any
suspension of the imposition or execution of that im-
prisonment or sentence in whole or in part.” There are
serious problems with relying on that definition, however,
in a case that falls within the Supreme Court’s St. Cyr
ruling. Congress added § 101(a)(48)(B) in 1996 as part
of IIRIRA—the same enactment that eliminated the
§ 212(c) waiver. If we are to be consistent in applying
§ 212(c) as it existed prior to IIRIRA, as St. Cyr dictates
for persons in Moreno’s situation, we should not use a def-
inition that was not then part of the statute. Cf. Valere,
473 F.3d at 761-62 (applying the law applicable at the
time of petitioner’s guilty plea in finding him ineligible for
§ 212(c) relief ). In calculating the term of imprisonment for
§ 212(c) waivers, courts of appeals have looked to the time
of actual incarceration, rather than the nominal sentence
ordered by a court. See, e.g., Elia v. Gonzales, 431 F.3d
268, 274 (6th Cir. 2005) (“Determining whether imprison-
ment has made an alien ineligible for § 212(c) relief ‘turns
not on the sentence imposed but on the period of actual in-
carceration.’ ” (quoting United States v. Ben Zvi, 242 F.3d
89, 99 (2d Cir. 2001))). We need not decide here whether
that is the appropriate point of reference, since the out-
come of Moreno’s petition is the same whether we look at
actual time behind bars or the sentence pronounced in
court.
No. 05-4105 7
Freed from any binding definition in the statute, Moreno
argues that “term of imprisonment” is a term of art that
refers only to the period between conviction and release.
He points out that there is a conjunction between the
references to the conviction and the term of imprison-
ment in § 212(c) itself, which talks about 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).
Moreno adds that detention prior to conviction, which is
governed by 18 U.S.C. § 3143, cannot be considered time
served for such a felony because pretrial detention ends
with the conviction for the crime. Detention before a
conviction, he concludes, is a civil restraint, not a crim-
inal one.
Moreno bolsters this argument by reference to the
statutes that direct the BOP how to calculate when to
release a person who has been incarcerated, 18 U.S.C.
§§ 3585 and 3624. Section 3585(a) governs the commence-
ment of a “sentence to a term of imprisonment,” which
begins on “the date the defendant is received in custody
awaiting transportation to . . . the official detention
facility at which the sentence is to be served.” The statute
also stipulates that “[a] defendant shall be given credit
toward the service of a term of imprisonment for any time
he has spent in official detention prior to the date the
sentence commences—(1) as a result of the offense for
which the sentence was imposed . . . .” § 3585(b)(1). Section
3624(a) is the counterpart governing an incarcerated
person’s release date: “A prisoner shall be released by the
Bureau of Prisons on the date of the expiration of the
prisoner’s term of imprisonment, less any time credited
toward the service of the prisoner’s sentence . . . .” Moreno
argues that in context, the phrase “term of imprisonment”
must refer solely to the period that commences on the
date the prisoner enters custody after conviction
8 No. 05-4105
(§ 3585(a)) and ends at the expiration of the prisoner’s
term (§ 3624(a)). Taken together, he concludes, these
statutes draw a distinction between pre-conviction time
served and the term of imprisonment—precisely the
distinction that Moreno would like to draw here for
purposes of § 212(c).
The problem with Moreno’s argument is that it fails to
give proper weight to the second half of § 3585, which
addresses credit for prior custody toward the service of
the term of imprisonment. Once a defendant is convicted
and his sentence calculated, all that remains is for the
BOP to decide how (and where) he must serve that term.
Time spent in “official detention prior to the date the
sentence commences” is, according to the statute, part of
that service. Moreno is correct that from an ex ante
perspective the pretrial detention of an accused person is
not pursuant to a conviction. This would be an entirely
different case if, implausibly, someone was detained for
more than five years prior to a trial and then was acquit-
ted. (But, of course, such a person would not be re-
movable in any event because of a conviction of an aggra-
vated felony.) Moreno was convicted of the crime for which
he was detained. As soon as he was convicted and sen-
tenced, § 3585(b) gave him the benefit of a credit toward
the service of his sentence for the time he had already
served. Long before his removal proceedings began, his
pretrial detention had been related to his crime of convic-
tion. The only sensible result is to count that period as
time that he “served for such felony” for purposes of
§ 212(c).
This conclusion is reinforced by the fact that the immi-
gration laws use the amount of time for which a person is
incarcerated as a proxy for the seriousness of the crime. As
this court commented in Guisto v. INS, “the selection of
five years’ imprisonment as the line of demarcation for
such ‘serious’ crimes is consistent with Congress’s selec-
No. 05-4105 9
tion of five years as the mandatory minimum prison term
for certain serious crimes.” 9 F.3d 8, 10 (7th Cir. 1993). We
have no reason to think that it mattered to Congress
whether the person served time before conviction or after:
it is the overall service of a term of imprisonment that
reflects the seriousness of the crime and the culpability
of the alien. Although immigration laws use somewhat
different terminology in different places, the amount of
time spent in jail or prison for a particular crime is
consistently an important consideration. For example, INA
§ 101(f )(7), 8 U.S.C. § 1101(f )(7), excludes from the
definition of someone with “good moral character” any
person “who during [the preceding five years] has been
confined, as a result of conviction, to a penal institution for
an aggregate period of 180 days or more.” In computing the
period of time for purposes of this section, the BIA has
held that confinement prior to conviction should be
included. See Matter of Valdovinos, 18 I. & N. Dec. 343,
344-45 (BIA 1982).
Moreno’s argument would create a senseless distinc-
tion between defendants convicted of the same crimes
based on whether or not they made bail before trial.
Moreno received credit for the 312 days he served before
trial when the BOP calculated the length of his sentence.
If the trial court in his criminal case had not ordered him
detained pending trial, he would have served that addi-
tional time after his final judgment. Finding Moreno to
be eligible in the former case for § 212(c) relief but not
in the latter would be an odd reward for having been
detained before a criminal trial.
Moreno’s petition for review is DENIED.
10 No. 05-4105
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-10-07