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9th Circuit Says a Year is 365 Days, Regardless of the 'Intricacies of Astronomy'

In an opinion issued this week (via How Appealing), the 9th Circuit set out to answer a question that seems better suited for the television show "Are You Smarter Than a Fifth Grader?" The question presented on appeal was:

How many days are in a year?

The obvious answer is, of course, 365 days. But for Jawid Habibi, an alien living in the U.S., an answer of "365 days" meant he might be removed from the U.S., and he therefore presented an astronomy-based argument in court that a year is a bit longer than 365 days -- 365.24237 days, to be exact, according to the Royal Observatory in Greenwich. (In its opinion, the 9th Circuit explained that we make up the difference by adding an extra day on Feb. 29 every fourth year ("leap year"). This still doesn't quite work, because 365.24237 days is not quite 365.25, so society further corrects its calendars by omitting leap year every 100 years, in years ending in "00" except once every 400 years).

The additional 0.24237 days was a key issue for Habibi because he had been convicted of battery and received a 365-day suspended sentence to be served through the year 2000, which was a leap year. As the 9th Circuit explained:

under 8 U.S.C. § 1101(a)(43)(F), 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 having committed an  "aggravated felony" are substantial -- for instance, if a removable alien is a lawful permanent resident ("LPR"), he becomes ineligible to apply for cancellation of removal.  Id. § 1229b(a)(3).

The court added that "[d]isregarding the intricacies of astronomy, the Board of Immigration Appeals ('BIA') defines 'one year' as 365 days, regardless of leap years, for purposes of § 1101(a)(43)(F)." Habibi, however, was not prepared to disregard such intricacies given the potential consequences.

The 9th Circuit was not persuaded by Habibi's astronomical argument. It noted that in Matsuk v. INS, it had already rejected the argument that because a "natural or lunar" year is actually composed of 365 days plus some hours, that the BIA definition of "one year" was incorrect. The court added that while Habibi's case was novel in that his 365-day sentence was to be served through the year 2000 -- a leap year -- accounting for leap years would lead to "unjust and absurd results. It would mean that an alien's status as an aggravated felon -- and his eligibility for removalor cancellation thereof -- would turn on a fortuity, the particular day in a particular calendar year in which he began serving his sentence."

Posted by Bruce Carton on September 16, 2011 at 12:36 PM | Permalink | Comments (3)


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