On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A045-696-373
The opinion of the court was delivered by: Judge Bybee
Submitted October 5, 2010*fn1 Pasadena, California
Before: Raymond C. Fisher and Jay S. Bybee, Circuit Judges, and Lyle E. Strom, Senior District Judge.*fn2
How many days are in a year? The answer is more complicated than it may first appear. According to the Royal Observatory in Greenwich, the astronomically correct answer is approximately 365.24237 days. See Leap Years and Leap Seconds, Royal Observatory, http://www.nmm.ac.uk/explore/ astronomy-and-time/time-facts/leap-years (last visited June 4, 2011). 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." Id. This would solve the problem entirely if a natural year were actually 365.25 days. However, because the actual figure is slightly less at 365.24237 days, adding a full day every four years ends up overcompen-sating. Id. To correct this, the Gregorian calendar approximates the natural year at 365.2425 days. See Leap Years, Naval Oceanography Portal, http://www.usno.navy.mil/ USNO/astronomical-applications/astronomical-information-center/leap-years (last visited June 4, 2011). As a result, we omit leap year every 100 years, in years ending in "00," except once every 400 years. Id. Therefore, while the years 1600 and 2000 were leap years, the years 1700, 1800, and 1900 were not. Id.
Despite its precision, the astronomical definition of a year does not help us answer the question of how long "one year" is for purposes of 8 U.S.C. § 1101(a)(43)(F). That subsection 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 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). Disregarding 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). Because taking the intricacies of astronomy into account would needlessly complicate this area of the law, we adopt the BIA's definition.
On November 3, 1999, petitioner Jawid Habibi ("Habibi"), an LPR, was convicted of Battery of a Current or Former Sig- nificant 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."
The BIA affirmed and adopted the IJ's decision. In addressing Habibi's argument that serving his 365-day sentence in a leap year made him eligible for cancellation of removal, the BIA noted that in Matsuk v. INS, 247 F.3d 999 (9th Cir. 2001), overruled on other grounds, Delgado v. Holder, ___ F.3d ___, No. 03-74442, 2011 WL 3633695 (9th Cir. Aug. 19, 2011) (en banc), "the Ninth Circuit approved of the Board's interpretation of one year as commonly meaning 365 days for purposes of finding that an alien's sentence to 365 days rendered his conviction an aggravated felony." The BIA further observed that adopting Habibi's position would lead "to an inconsistent and absurd result, subjecting aliens to a different set of rules depending on whether or not they were sentenced in a leap year."
Habibi timely petitioned for review. We review the BIA's conclusions of law de novo. See, e.g., Chavez-Perez v. Ash- croft, 386 F.3d 1284, 1287 (9th Cir. 2004); Rosales-Rosales ...