I was saying a couple of days ago how nice it is to have some very smart professorial types on the Court of Appeals. But there's a downside. Like this.
It's not that Judge Bybee gets it wrong. He doesn't. The BIA says that you're convicted of an "aggravated felony" (and hence ineligible for cancellation of removal) of you're sentence to a term of imprisonment of at least "one year". Habbi was sentenced to 365 days in jail. But it was a leap year. So Habbi says that he hasn't served "a year" in prison.
A regular jurist might respond simply by saying: "The BIA nonetheless has said at every 'year' is defined as 365 days, and this is entitled to deference under controlling precedent, so Habbi loses." Which would be entirely correct, as well as sufficient to resolve the case. And, don't get me wrong, Judge Bybee's opinion does indeed say that.
A different jurist might alternately -- or additionally -- respond by saying: "We already decided a Ninth Circuit case called Matsuk in which an equally-creative lawyer with a client who also served 365 days argued that his client hadn't served a 'year' since the Earth actually takes 365.24 days to revolve around the Sun (which is why we have leap years), and that case is binding since the present case is no different: we simply don't count leap years." That'd be correct as well. And, again, Judge Bybee says that too. He also (smartly) notes the policy consequences of the defendant's proposed rule, which would treat defendants who were sentenced to identical time (365 days) for identical crimes differently depending on whether they were sentenced it a leap year or not. That doesn't make sense.
But when you're an academic type, you might not end there. As Judge Bybee doesn't. Sure, the case is all about leap years, and all you really need to know for that is that we have one every four years. It's a simple concept. But Judge Bybee goes further, and early in the opinion articulates expansive exegesis on the fact that leap years "would solve the problem [of the 365-day calendar not corresponding to an astronomical year] 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. To correct this, the Gregorian calendar approximates the natural year at 365.2425 days. As a result, we omit leap year every 100 years, in years ending in “00,” except once every 400 years. Therefore, while the years 1600 and 2000 were leap years, the years 1700, 1800, and 1900 were not." In short, explaining the lesser-understood (but entirely accurate) concept of essentially "anti-leap centuries" -- which, for the fancy amongst us, are called "common years" versus "end-of-century leap years."
Does any of this matter to Habbi? Or to the appeal (or issue) at hand? No. Not one bit. You don't need to know about the occasional century exceptions to the leap year rule to decide whether a year is indeed 365 days. All you have to know is the basic leap year rule. But Judge Bybee wants you to know more.
I'm not complaining, of course. I like entertaining stuff. As well as learning information I don't already know (though this particular stuff isn't new to me).
But that's what you get sometimes when you put professorial types in black robes. Tangents. Interesting tangents, occasionally. But definite tangents.
