From Habibi v. Holder (9th Cir., decided today):
On November 3, 1999, petitioner Jawid Habibi …, [a lawful permanent resident], was convicted of Battery of a Current or Former Significant Other, a misdemeanor under California Penal Code § 243(e)(1). Habibi received a 365-day suspended sentence to be served through the year 2000, which was a leap year. The Department of Homeland Security (“DHS”) subsequently served Habibi with a Notice to Appear (“NTA”), charging that his California conviction made him removable under 8 U.S.C. § 1227(a)(2)(E)(i), as an alien convicted of a crime of domestic violence.
Habibi requested cancellation of removal. An immigration judge (“IJ”) concluded after a hearing that Habibi was not eligible for cancellation of removal because his domestic violence conviction constituted an “aggravated felony” under § 1101(a)(43)(F). Habibi argued that because “aggravated felony” is defined as a “crime of violence … for which the term of imprisonment [is] at least one year,” 8 U.S.C. § 1101(a)(43)(F), and because his 365-day sentence was completed during a leap year, which was 366 days long, his California conviction did not qualify as an “aggravated felony.” The IJ rejected this argument, noting that “it is well settled that … 365 days … would be the equivalent of a legal year.” …
In 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. 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. It would mean that an alien’s status as an aggravated felon — and his eligibility for removal or cancellation thereof — would turn on a fortuity, the particular day in a particular calendar year in which he began serving his sentence. If, for example, Habibi had started serving his 365-day sentence on February 15, 2000, then, according to Habibi, he would be eligible for cancellation of removal, because his sentence would have encompassed February 29, 2000. If, on the other hand, his sentence had started a month later, on March 15, 2000, then he would not be eligible for cancellation of removal, since 2001 was not a leap year, and his sentence would not have included a February 29. There is no indication that Congress intended for the definition of “aggravated felony” to shift depending on what day an alien happened to start serving his sentence….
We therefore hold that the BIA was correct to conclude that, for purposes of § 1101(a)(43)(F), a sentence of 365 days qualifies as a “term of imprisonment [of] at least one year,” even when the sentence was served in whole or in part during a leap year.
Interestingly, in another provision of the Immigration and Nationality Act, a “year” ends up meaning a calendar year, which may indeed be 366 days in leap years and 365 days in other years. But the court held that in this provision, “at least one year” means at least 365 days. Thanks to How Appealing for the pointer.