Research question (please assist). (fwd)
fjn at U.WASHINGTON.EDU
Wed Feb 21 17:12:04 UTC 2001
Below is an enquiry from a law student at the University of Washington.
Hopefully one of you can apply your expertise to helping him. Please reply
directly to him (his e-mail address is below).
Message from: J. Rollin <ublej at u.washington.edu>
On Mon, 5 Feb 2001, J. Rollin wrote:
> Hello. My name is Joseph Rollin. I am a third year student at the UW law
> school, and I am working on my graduating thesis. I am dealing with a
> statute interpretation questions that deals with some fairly heavy
> linquistic concepts, and I would very much appreciate your help. There is
> a small chance that this work will be published.
> My question in the abstract is: How should time (in terms of days and
> years) be counted: as discreet units (like apples) or as a continuous
> physical abstraction (like distance).
> My question concerns an immmigration law statute that defines a set of
> offenses considered to be 'aggravated felonies' for deportation
> purposes. In a number of places within the 'aggravated felony'
> definition appears language like the following:
> "The term 'aggravated felony' means -
> (G) a theft offense...for which the term of imprisonment [is] at least
> one year [sic];"
> (note: the [is] is missing from the statute, but courts have decided
> that [is] is the correct verb.)
> Four federal circuit courts have interpreted the 'for which the term of
> imprisonment [is] at least one year' language to include jail sentences of
> 365 days (or one-year).
> Traditionally (for a few hundred years at least) the diving line between
> misdemeanor offenses and felony offenses has been the one-year mark. Any
> term of imprisonment up to and including 365 days is considered a
> 'misdemeanor' in federal law and all state law (except possibly
> Louisiana). Any term of imprisonment EXCEEDING 365 days denotes a
> However, because of the new language in the statute (which used to read
> 'for which the term of imprisonment is at least five years'), a 365 day
> sentence is considered to be an 'aggravated felony' for immigration
> purposes even though it is only a 'misdemeanor' under federal and state
> criminal law. Since the law also disregards any suspension of sentence, a
> person is sentenced to 365 days with 365 days suspended (thus spending no
> actual time in jail) is considered to be an 'aggravated
> felon'. Immigrants who have committed very minor offenses (pulling a
> person's hair, for example) are being deported and are permanently barred
> from re-entering the U.S. (20 years in jail if they try) because of this
> interpretation of the statute.
> My question is whether the phrase, 'at least one year' means (or must
> necessarily mean) 'one year or more' or 'more than one year'.
> One person has argued that since time is a 'physical abstraction' the
> language must mean 'more than one year':
> If a person promises to give another 'at least five oranges,' that person
> can expect to receive five oranges or more. This is how Graham views the
> phrase 'at least one year'. If each day were considered to be a discrete
> object, 365 days would be 'at least one year' because one would have 365
> days or more. On the other hand, "A person who promises to arrive in 'at most' five minutes, and one who
> promises not to arrive for 'at least' five minutes, do not intent their
> arrivals to overlap. If they do overlap there has been a technical breach
> of promise by one or the other or both. 'At least' five minutes has a
> lower limit, a 'floor,' which must be exceeded. 'At most' five minutes
> has an upper limit, a 'ceiling,' which cannot be exceeded. The moment
> when exactly five minutes fishes has no duration itself. It is simply the
> dimensionless point that divides the two periods before and after it.
> Anyone who has watched the clock at midnight on New Year's Eve knows that
> the moment when one year ends and the next year begins does not itself
> last for a minute or even a second. Midnight is a dividing line, having a
> location but lacking any duration itself, just as the boundary between two
> countries has location but no thickness. It simply serves to demarcate
> what is on one side from what is on the other[A] 'year' is a limiting
> concept whose importance derives from which side it is approached
> from. 'At most one year' and 'at least one year' butt into one another
> but do not overlap, not even for the smallest fraction of a second, just
> as the U.S. and Canada do not overlap at the boarder for the smallest
> fraction of an inch.
> A person who walks 'at most' to the boarder with Canada is absolutely and
> positively still in the United States, while a person who walks 'at least'
> to that boarder is absolutely and positively in Canada. Respondent's
> sentence of 'at most' one year is like a walk 'at most' up to the boarder,
> as close as one may measure, but not across it. Congress's threshold of
> 'at least' one year requires crossing that boarder, even if by the most
> minute amount. [T]he correct construction of 'at least one year' in
> 101(a)(43) is 'more than one year,' not 'one year or more.'"
> Do you agree with this argument? I am looking for your opinion as an
> authority in the field of linguistics. If you agree, is there any
> technical explaination or linguistic rule that would support this
> argument? Are there any published sources that might be relied upon for
> Thank you very much for your help,
> P.S. If you wish, I can forward to you arecent article (Feb 2, Atlanta
> Journal-Constitution) that discusses the consequences of this language.
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