explaining that, in Michigan, “there is no guarantee that an incarcerated person will be released from prison after the person has completed his or her minimum sentence [because] the parole board retains the discretion to keep a person incarcerated up to the maximum sentence authorized by the jury’s verdict”
How later courts described this case
- explaining that, in Michigan, “there is no guarantee that an incarcerated person will be released from prison after the person has completed his or her minimum sentence [because] the parole board retains the discretion to keep a person incarcerated up to the maximum sentence authorized by the jury’s verdict”
- describing, in dicta, an immigration petitioner as having received "an indeterminate sentence of nine months to ten years" "under Michigan law"
Written by the judges who cited it.
The opinion
KETHLEDGE, Circuit Judge,
dissenting.
The dispositive issue of statutory interpretation in this case, I believe, is one of federal rather than state law. I agree with the majority that 8 U.S.C. § 1101 (a)(43)(F) is unclear “as to whether ‘term of imprisonment’ refers to the maximum sentence available for the particular offense, the maximum sentence imposed by the sentencing court, the minimum sentence imposed by the sentencing court, or the amount of time actually served by the petitioner in prison.” Maj. Op. at 405. But *409 the result of that obscurity is that the Board gets to choose among those plausible interpretations. See Khalili v. Holder, 557 F.3d 429, 435 (6th Cir.2009) (“The BIA’s interpretation of the statute and regulations will be upheld unless the interpretation is arbitrary, capricious, or manifestly contrary to the statute”) (internal quotation marks omitted). The Board has chosen the second option here — namely, that for indeterminate sentences, the term of imprisonment is deemed to be the maximum sentence imposed by the sentencing court. See In re S — S—, 21 I. & N. Dec. 900, 903 (1997). That definition, therefore, is the one we must apply. See Nguyen v. INS, 53 F.3d 310, 311 (10th Cir.1995) (“We find the BIA’s interpretation of an indeterminate prison sentence and its application to 8 U.S.C. § 1101 (a)(43) to be permissible”).
That definition eliminates any need to interpret Michigan law here, because it is undisputed that the maximum sentence imposed in Shaya’s case was ten years. His sentence therefore exceeds the one-year threshold specified in § 1101(a)(43)(F), which makes him removable as an aggravated felon.
I also think that Shaya’s equitable arguments are without merit, and thus would deny his petition. For these reasons, I respectfully dissent.