Habibi v. Holder (9th Cir. 9/14/2011)

I would put this case under the “nice try” category.  Immigration attorneys,  especially the ones who mainly deal with appellate issues, can be very creative.  Sometimes our creativity pays off.  Other times, it doesn’t.   The above case is an example of a cute idea that didn’t get too far.

The respondent in the case was convicted of domestic violence.  He received a sentence of 365 days, which was suspended.  The sentence was supposed to be served through the year 2000, which was a leap year.  In case you forgot, a leap year has 366 days.  The respondent was placed in removal proceedings on account of his conviction.  He sought to apply for cancellation of removal, but the immigration judge denied his request because he was an aggravated felon, having been convicted of a crime of violence for which the term of imprisonment is at least one year.  In a prior case, the BIA defined 365 days as one year, regardless of leap years.  I was surprised someone had tried this argument before.

The respondent argued that his sentence was not one year, because it was only 365 days, which would not constitute a full year during leap years.  A leap year has 366 days, so his sentence was less than a year because it was imposed during a leap year.  A clever argument, but it did not get him very far with the 9th Circuit.  They didn’t even give him any bonus points for trying.  Needless to say, the court denied his appeal.