If you have no doubt that 12 months equals 1 year, you probably don’t suffer from being a lawyer.
Sometimes the law can seem pretty silly. I guess lawyers can seem silly, too. We get stereotyped for answering every question with, “It depends.”
But here is a great example of why that affliction nags us.
A quirk in the law makes “It depends” the correct (legal) answer to the question: “Does 12 months equal 1 year?”
Oscar Rene Perdomo Ulloa illegally entered the U.S. and was subsequently convicted in Virginia of a misdemeanor for fraudulently using someone else’s identity. That meant he could be sent to jail for “not more than 12 months.” (He only got 30 days.)
Bad news for him, because the U.S. Department of Homeland Security began removal proceedings against him. He applied for cancellation of the removal but an immigration judge denied it, finding his misdemeanor conviction made him ineligible. Specifically, a provision in the law makes cancellation unavailable to anyone convicted of a crime punishable by imprisonment for “one year or longer.” Since his fraud was punishable by 12 months, the judge reasoned that it was a crime punishable by one year.
But Ulloa had lawyers on his side (including Harvard Law School’s “Crimmigration” Clinic) and they had read Virginia law. They argued 12 months ≠ 1 year, at least not when it comes to criminal sentences. Therefore, he was still eligible.
This week the United States Court of Appeals for the Fourth Circuit denied that argument, finding 12 months “plainly” was a year (for immigration purposes).
But it’s not a crazy argument, legally speaking. In Virginia, courts have said “when it comes to criminal sentencings…twelve months is not simply another way of expressing one year, and the phrases do not mean the same thing.”
That is also true in Kentucky. I found that out as a young ATF agent when I went undercover to buy some explosive devices. I was sure the suspect was a felon. He had plead guilty to arson and was sentenced to 12 months.
He thought he was a felon, too. He said so while I met him in his house and ordered a bomb. I noticed a gun in the corner and offered to buy it, too. “Sure. I’m a convicted felon and ain’t even supposed to have it.”
But no. He had only been sentenced to 12 months. Not a year. He was a misdemeanant, not a felon.
For inmates, this distinction has a practical consequence. Twelve months: stay in county jail and serve the entire sentence. One year: go to state prison and get early release. That’s why one of the leading Kentucky cases on this issue involved defendants who complained the court didn’t convict them of a felony and send them to prison, rather than convicting them of a lesser misdemeanor.
So, if someone asks you if 12 months equals a year, the correct legal answer is: “It depends. Are you asking for immigration or incarceration?”
You can read the Fourth Circuit case here, and the Kentucky case here.