FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAWID HABIBI, 

Petitioner, No. 06-72111

v. Agency No.  A045-696-373 ERIC H. HOLDER Jr., Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted October 5, 2010*

Pasadena, California

Filed September 14, 2011

Before: Raymond C. Fisher and Jay S. Bybee,

Circuit Judges, and Lyle E. Strom, Senior District Judge.**

Opinion by Judge Bybee

*The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2). 

**The Honorable Lyle E. Strom, Senior United States District Judge for

the District of Nebraska, sitting by designation. 

17559
COUNSEL

Alex Lareybi, San Diego, California, for the petitioner.

Peter D. Keisler, Assistant Attorney General; Terri J. Scadron,

Assistant Director; Anthony W. Norwood, Senior Litigation

Counsel, Office of Immigration Litigation, U.S. Department

of Justice, Washington D.C., for the respondent.

OPINION

BYBEE, Circuit Judge:

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/

HABIBI v. HOLDER 17561
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 overcompensating. 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-informationcenter/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.

I

On November 3, 1999, petitioner Jawid Habibi (“Habibi”),

an LPR, was convicted of Battery of a Current or Former Sig17562 HABIBI v. HOLDER
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. AshHABIBI v. HOLDER 17563
croft, 386 F.3d 1284, 1287 (9th Cir. 2004); Rosales-Rosales

v. Ashcroft, 347 F.3d 714, 717 (9th Cir. 2003).

II

[1] Under 8 U.S.C. § 1229b(a)(3), an LPR convicted of an

“aggravated felony” is ineligible for cancellation of removal.

“Aggravated felony” is defined by 8 U.S.C. § 1101(a)(43)(F)

as including a “crime of violence . . . for which the term of

imprisonment [is] at least one year.”

It is undisputed that Habibi’s California domestic violence

conviction is a “crime of violence.” He contends, however,

that because he completed his 365-day sentence during a leap

year, his offense does not qualify as a crime “for which the

term of imprisonment [is] at least one year,” as required by 8

U.S.C. § 1101(a)(43)(F). 

[2] Habibi’s argument is controlled by our decision in Matsuk. In that case, the government sought removal of an alien

who had several state convictions for assault, each of which

carried a sentence of 365 days. Matsuk argued that these convictions were not for crimes “for which the term of imprisonment [is] at least one year” because a “natural or lunar” year

is actually composed of 365 days plus some hours. 247 F.3d

at 1000-02. The BIA countered that “a calendar year was a

more appropriate measure and . . . that a calendar year is commonly thought of as 365 days.” Id. at 1002. We held that the

BIA’s interpretation of one year as equaling 365 days was

rational and entitled to deference.1Id. (“Because the BIA’s

interpretation is entirely rational—and certainly not demon1Although Matsuk did not cite Chevron v. Natural Resources Defense

Council, 467 U.S. 837 (1984), it appears to have reviewed the BIA’s decision under a framework of Chevron deference. Matsuk was decided before

our decision in Marmolejo-Campos held that unpublished BIA orders

were not entitled to Chevron deference, but only entitled to Skidmore deference. 

17564 HABIBI v. HOLDER
strably irrational or clearly contrary to the plain and sensible

meaning of the statute—the BIA’s interpretation should not

be disturbed.”) (internal quotation marks omitted); see also

United States v. Gonzalez-Tamariz, 310 F.3d 1168, 1171 (9th

Cir. 2002).

Although Habibi’s leap-year sentence presents an interesting twist, we see no need to revisit Matsuk. Although the

BIA’s definition, contained in an unpublished order, is not

entitled to Chevron deference, see Marmolejo-Campos v.

Holder, 558 F.3d 903, 909 (9th Cir. 2009) (en banc) (“We

have not accorded Chevron deference to the [BIA]’s unpublished decisions . . . because they do not bind future parties.”);

Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1012-14 (9th

Cir. 2006) (“Because unpublished decisions lack precedential

value, this court . . . ha[s] declined to give them deferential

treatment under Chevron.”) (quotation marks and citation

omitted), it is entitled to deference under Skidmore v. Swift &

Co., 323 U.S. 134 (1944). See Marmolejo-Campos, 558 F.3d

at 909 (“[W]e have applied Skidmore when reviewing [the

BIA’s] unpublished orders.”). Under Skidmore we defer to the

BIA’s interpretation based on “the thoroughness evident in its

consideration, the validity of its reasoning, its consistency

with earlier and later pronouncements, and all those factors

which give it power to persuade, if lacking power to control.”

323 U.S. at 140. 

[3] 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

HABIBI v. HOLDER 17565
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. Indeed, the statute uses the

phrase “term of imprisonment,” which suggests an inquiry

into the absolute value of the term, rather than an inquiry into

when the term began and when it ended. The BIA’s position

—which effectively classifies as aggravated felons all aliens

sentenced to at least a 365-day prison term—is the most logical reading of the statute and results in consistent outcomes.

Habibi nonetheless points to our decision in Lagandaon v.

Ashcroft, 383 F.3d 983, 985 (9th Cir. 2004), that held, for purposes of a different provision of the Immigration and Naturalization Act (“INA”), that “a year, other than a leap year, is

365 days.” In that case, an alien petitioned for cancellation of

removal on grounds set out in 8 U.S.C. § 1229b(b)(1). To be

eligible for cancellation of removal under that particular provision, the petitioner had to have “been physically present in

the United States for a continuous period of not less than 10

years.” 8 U.S.C. § 1229b(b)(1). For purposes of calculating

whether a petitioner had met the ten-year physical presence

requirement, we held that one year equals 365 days, except in

leap years, when it equals 366 days. Lagandaon, 383 F.3d at

985. 

Lagandaon is inapplicable to Habibi’s case. Not only were

we interpreting a different statutory provision in Lagandaon,

2

but the language there concerned how to calculate “a ‘year’

. . . in terms of dates.” Looking to Black’s Law Dictionary,

2Lagandaon did not refer to our prior opinion in Matsuk. 

17566 HABIBI v. HOLDER
we observed that a year is defined as “ ‘[t]welve calendar

months beginning January 1 and ending December 31,’ or as

‘[t]welve calendar months beginning at any point.’ ” Id. at

991 (quoting Black’s Law Dictionary 1609 (7th ed. 1999)).

The method we adopted in Lagandaon is useful for calculating terms of years from a particular starting date. See id.

(quoting Bailey v. Faux, 704 F. Supp. 1051, 1053 (D. Utah

1989) (“[A] calendar method of calculating a one year period

from any given date results in termination of that period in the

next calendar year on the date one day prior to the starting

date.”)); see also Bosch v. Town Pump, Inc., 102 P.3d 32, 33-

34 (Mont. 2004). But “twelve calendar months” is not the

only measure of a “year.” The definition we quoted from

Black’s was the first definition; the second is “[a] consecutive

365-day period beginning at any point.” Black’s Law Dictionary 1754 (9th ed. 2009).3

Lagandaon’s focus on calendar years was reasonable in the

context in which we decided it. We held in Lagandaon that

if an alien arrived in the United States on February 1, 2010,

he might become eligible for cancellation of removal on January 31, 2020. See 383 F.3d at 993. If we had held in Lagandaon that one year was 365 days regardless of leap years, we

would have needlessly complicated the calculation by requiring aliens, the BIA, and us to calculate the number of leap

years within the applicable ten year period. For example, if

the alien had arrived on February 1, 2010, 3,650 days (365

days/year times 10 years) would elapse by January 29, 2020.

On the other hand, if the alien had arrived on February 1,

2012, the applicable date would be January 28, 2022. Alternatively, if the alien had arrived on February 1, 2097, the date

3Before Professor Garner began his massive effort to rewrite Black’s,

the entry for “year” noted that “year” could be “astronomical, ecclesiastical, or regnal,” and that “[w]hen the period of a ‘year’ is named, a calendar year is generally intended, but the subject-matter or context of statute

or contract in which the term is found or to which it relates may alter its

meaning.” Black’s Law Dictionary 1790 (Rev. 4th ed. 1968). 

HABIBI v. HOLDER 17567
after which 3,650 days would elapse would be January 30,

2107. This awkward discrepancy exists because within any

given ten-year period, there will be anywhere between one

and three leap years.4 Defining a year to be 365 days except

in leap years therefore made sense for purposes of the provision at issue in Lagandaon because we were describing a

“continuous period of not less than 10 years.” 

On the other hand, § 1101(a)(43)(F) is not about calculating

calendar periods, but about defining how many days a sentence must be to be a sentence of “at least one year.” Further,

as discussed above, importing the definition of a year from

Lagandaon when reading § 1101(a)(43)(F) would cause the

definition of “aggravated felony” to shift depending on

whether the alien managed to serve some part of his sentence

during a leap year, and when during the leap year he served

his sentence. Lagandaon’s definition of a year made sense for

purposes of § 1229b(b)(1), but it makes little sense for purposes of § 1101(a)(43)(F).

[4] 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.

III

[5] Habibi next argues that because his underlying domestic violence conviction is classified as a misdemeanor under

California law, it does not qualify as an “aggravated felony”

under 8 U.S.C. § 1227(a)(2)(E)(i). He concedes that our precedents hold that whether a state classifies an offense as a

4For instance, between 1999 and 2009, there were three leap years:

2000, 2004, and 2008. Between 2001 and 2011, there were two leap years:

2004 and 2008. Between 2097 and 2107, there will only be one leap year:

2104. 

17568 HABIBI v. HOLDER
“misdemeanor” is irrelevant to determining whether it is an

“aggravated felony” for purposes of federal law. See United

States v. Corona-Sanchez, 291 F.3d 1201, 1210 (9th Cir.

2002) (en banc) (“[I]t is irrelevant whether the state labels the

underlying crime ‘misdemeanor’ or ‘felony.’ . . . . The relevant question is whether the crime meets the definition of an

‘aggravated felony’ under federal sentencing law.”), superseded on other grounds by U.S.S.G. § 2L1.2 cmt. n.4 (2002).

He nonetheless argues that because the Third Circuit held otherwise in Steele v. Blackman, 236 F.3d 130, 135-37 (3d Cir.

2001), the differing application of the law in different circuits

violates his equal protection rights. No court has ever held

that the mere existence of a circuit split on an issue of statutory interpretation violates due process or equal protection,

and we decline Habibi’s invitation to do so here.

IV

[6] In proceedings before the IJ, Habibi also sought a continuance to permit him to apply for asylum and adjustment of

status. The IJ denied the motion because this would require

Habibi to apply for an INA § 212(h) waiver, 8 U.S.C.

§ 1182(h), and LPRs convicted of aggravated felonies are not

eligible for § 212(h) waivers. Habibi argues that his equal

protection rights are violated by the fact that, as an LPR, he

is statutorily ineligible for a § 212(h) waiver, although a nonLPR alien might be eligible. 

We have previously held that Congress has a rational basis

for excluding LPRs from eligibility for § 212(h) waivers. In

Taniguchi v. Schultz, 303 F.3d 950 (9th Cir. 2002), we

observed that because “LPRs enjoy substantial rights and

privileges not shared by other aliens, . . . it is arguably proper

to hold them to a higher standard and level of responsibility.”

Id. at 957-58 (internal quotation marks and brackets omitted).

Accordingly, we held that Congress does not violate equal

protection by denying LPRs the opportunity to apply for a

HABIBI v. HOLDER 17569
§ 212(h) waiver. Because Taniguchi is controlling, we must

reject Habibi’s equal protection argument.

V

All of Habibi’s arguments for cancellation of removal have

been addressed by our precedents. None have been resolved

in his favor. Accordingly, we must deny Habibi’s petition for

review.

PETITION DENIED.

17570 HABIBI v. HOLDER