Habibi v. Holder

Regarding cancellation of removal under 8 U.S.C. § 1229b(b)(3), (1) when defining “aggravated felony” under 8 U.S.C. § 1101(a)(43), one year equals 365-days regardless that a sentence is served during a 366-day leap year; (2) whether a state conviction is a “misdemeanor” is irrelevant to determining an “aggravated felony” under federal sentencing law; and (3) neither due process nor equal protection are offended by (a) a circuit split on an issue; or (b) where 8 U.S.C. § 1182(h) denies § 212(h) waivers to lawful permanent residents (LPR) convicted of aggravated felonies, though not necessarily to similar non-LPR’s.

Habibi, a lawful permanent resident, was convicted of misdemeanor Battery of a Significant Other in California and received a 365-day suspended sentence. Department of Homeland Security then charged that Habibi was removable as an alien convicted of a crime of domestic violence, under 8 U.S.C. § 1227(a)(2)(E)(i). The Board of Immigration Appeals (BIA) affirmed an immigration judge’s (IJ) determination that, according to 8 U.S.C. § 1229b(a)(3), Habibi was not eligible for cancellation because his conviction constituted an “aggravated felony” under § 1101(a)(43)(F): a crime of violence carrying a term of imprisonment of at least one year. Habibi petitioned the Ninth Circuit for review, claiming that because his 365-day sentence fell during a 366-day leap year his conviction was not an “aggravated felony.” The Court disagreed citing Matsuk, “a calendar year is commonly thought of as 365 days” for the purposes of § 1101(a)(43). The Court distinguished Lagandaon as “useful for calculating terms of years from a particular start date,” where under 8 U.S.C. § 1229b(b)(1), “one year equal[ed] 365 days, except in leap years, when it equals 366.” The Court justified that distinction as necessary to avoid unjust and absurd results when calculating a continuous period over a number of years. Further, the Court found no violation of due process or equal protection where (1) regardless a circuit split on the issue, in the Ninth Circuit, classification of Habilbi’s conviction as a misdemeanor under state law was immaterial to federal sentencing law; or (2) where Habibi could not seek a continuance permit in order to apply for asylum and adjustment of status because LPR’s convicted of aggravated felonies are ineligible to apply for § 212(h) waivers. PETITION DENIED.