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Thursday, September 15, 2011


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Ninth Circuit Says 365-Day Jail Term Makes Defendant a Felon

Alien, Convicted of Domestic Abuse and Sentenced During Leap Year, Held Subject to Removal


By SHERRI M. OKAMOTO, Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday ruled that an alien who received a 365-day suspended sentence to be served during a leap year lasting 366 days, was a one-year sentence which rendered him removable.

Judge Jay S. Bybee wrote for the court, and began his decision with the observation that the question of “[h]ow many days are in a year” is “more complicated than it may first appear.”

According to the Royal Observatory in Greenwich, Bybee noted, the astronomically correct answer is approximately 365.24237 days, but since “it would be impractical for our calendars to add 0.24237 days at the end of each year, we make up the difference by adding an extra day, February 29, every fourth year, which is known as ‘leap year.’”

Such astronomical precision, however, “does not help us answer the question of how long ‘one year’ is for purposes of 8 U.S.C. § 1101(a)(43)(F),” Bybee said. This statute provides that an alien who commits “a crime of violence…for which the term of imprisonment [is] at least one year” has committed an “aggravated felony,” the immigration consequences of which, render that alien ineligible to apply for cancellation of removal.

Jawid Habibi, a legal permanent resident convicted in California of domestic battery, had sought cancellation of removal contending his 365-day suspended sentence, served in 2000, did not qualify as an “aggravated felony” for which he served a “one year” sentence because 2000 was a leap year.

An immigration judge and the Board of Immigration Appeals both rejected this contention, and Bybee agreed, reasoning that “Habibi’s leap-year sentence presents an interesting twist” on the interpretation of Sec. 1101(a)(43)(F), but that “taking the intricacies of astronomy into account would needlessly complicate this area of the law.”

Adopting Habibi’s position that “one year” should mean 366 days when the sentence was served in a leap year “would lead to unjust and absurd results,” Bybee said., and condition an alien’s status as an aggravated felon “on a fortuity, the particular day in a particular calendar year in which he began serving his sentence.”

Joined by Judge Raymond C. Fisher and Senior District Judge Lyle E. Strom of the District of Nebraska, sitting by designation, Bybee concluded that “[i]n the context of § 1101(a)(43), the BIA correctly concluded that the phrase ‘term of imprisonment [of] at least one year’ means a sentence of at least 365 days, regardless of whether any part of the sentence was served during a leap year.”

The case is Habibi v. Holder, 06-72111.


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