Habibi: Civil “Aggravated Felony” Definition Clashes With Supreme Court Rules Interpreting The Same Statute

On September 14, 2011, the Ninth Circuit decided in Habibi how long it takes for a year to elapse, holding that “one year” in the “aggravated felony” statute takes less time than an astronomical year. Even though the decision was made in a civil context, defenders will need to be aware of the ways in which this decision, which potentially increases the punishment for our § 1326 clients, clashes with the Supreme Court’s rules for construing the “aggravated felony” statute in Leocal and Lopez. The Ninth Circuit appears to be recapitulating its analytical error – eventually reversed by the Supreme Court – of giving different treatment to prior convictions in civil and criminal settings. Governing Supreme Court authority should foreclose application of Habibi in the criminal context.

In Habibi, Judge Bybee determined that the alien’s 365-day misdemeanor sentence, in the civil deportation context, met the definition of “aggravated felony” under 8 U.S.C. § 1101(a)(43). The statute designates as an “aggravated felony” “a crime of violence....for which the term of imprisonment is at least one year.” The Habibi panel established that, as a matter of scientific fact, a year elapses in about 365.2524 days. Relying on pre-Leocal Ninth Circuit authority – and never mentioning Leocal at all – the court deferred to the immigration agency’s informal reading of the statute. Science just seemed too inconvenient: “Because taking the intricacies of astronomy into account would needlessly complicate this area of law, we adopt the [Board of Immigration Appeals]’s definition.”

Not so fast: doesn’t this analysis run directly contrary to the Supreme Court’s construction of “aggravated felony” in Leocal and Lopez? In Leocal, Chief Justice Rehnquist analyzed § 1101(a)(43) in deciding whether drunk driving constituted an “aggravated felony.” In holding that the statute did not extend to drunk driving, the Court appears to have provided three reasons that Habibi’s reasoning is fundamentally flawed and that earlier precedent based on immigration agency convenience has been superseded by intervening Supreme Court authority.

First and most basically, the Supreme Court in Leocal’s footnote 8 articulated the principle that, because “aggravated felony” has criminal consequences also, any ambiguity must be resolved based on the rule of lenity: “Because we must interpret the statute consistently, whether we encounter its application in a criminal or noncriminal context, the rule of lenity applies.” Given the reality-based length of a year, any ambiguity the Habibi court faced should have been resolved with a finding the 365 days is less than a year. A year may be only .2524 days more, but 365 days is not a year.

Second, the Leocal opinion emphasized that construction of the statute should be informed by the term ultimately being defined, in that case “crime of violence.” Just as the natural meaning of that term would not encompass drunk driving, the term “aggravated felony” does not naturally include Mr. Habibi’s misdemeanor conviction. Although the Habibi court noted that the federal standard could trump the state description of the offense, at the very least, the term being defined militates against treatment of a 365-day misdemeanor sentence as an “aggravated felony.”

Third, the Leocal opinion is notable for providing no deference to the immigration agency’s position. Quite properly, the Court treated the matter strictly as judicial interpretation of the statutory term. Given the potential criminal consequences, basic separation of powers values militate against deference to the Executive in a manner that expands the punishment for criminal conduct. Instead of narrowly construing a penal statute, the Habibi panel decided the case as if administrative convenience is the deciding factor. And what’s so inconvenient about defining a year as 365.2524 days?

For those who remember the Ninth Circuit’s internal split over treatment of simple drug possession as an “aggravated felony,” Habibi is like deja vu all over again. In Ibarra-Galindo, back in 2000, the court through Judge O’Scannlain held that, in a criminal case, simple possession constituted “illicit trafficking,” which included “drug trafficking offenses” if the state treated possession as a felony. Judge Canby dissented, facing down the majority and six other circuits, in reliance on a common sense reading of the statute and, in the alternative, the rule of lenity. Six years later, in Cazarez-Gutierrez, Judge Betty Fletcher wrote for the court that, in the civil deportation context, simple possession was not an aggravated felony. As a result, the same statutory words meant different things depending on their use in criminal or civil context, and, oddly enough, the harsher interpretation applied to criminal punishment.

Finally in late 2006, the Supreme Court in Lopez resolved the nationwide conflicts by holding that simple drug possession was not included as an “aggravated felony,” largely for reasons foreshadowed in Judge Canby’s Ibarra-Galindo dissent. Justice Souter, writing for all but Justice Thomas, started the opinion by describing the “aggravated felony” provision as involving both criminal and civil consequences. In contrast, the court in Habibi refers only to the consequence of removal – there is no reference to the effect on criminal sentencing. The Habibi court’s failure to recognize that there can be only one statutory definition, and that definition applies in both civil and criminal contexts, appears to be inconsistent with the Lopez methodology. The omission is also inconsistent with Figueroa-Ocampo, in which the Ninth Circuit recognized that Lopez necessarily overruled Ibarra-Galindo’s different interpretation in the criminal context: “Given the Supreme Court's discussion of the shared definition of ‘aggravated felony’ under the [Immigration and Nationality Act] and the Sentencing Guidelines, the Court's reference to Ibarra-Galindo and Cazarez-Gutierrez, and the Court's interpretation of the INA term ‘aggravated felony’ adopted by the Guidelines, it is beyond dispute that Lopez applies in both criminal sentencing and immigration matters.”

Justice Souter also followed the Leocal lead in focusing on the “commonsense conception of ‘illicit trafficking,’ the term ultimately being defined.” In Lopez, the Court cited to Leocal in objecting to turning “simple possession into trafficking, just what the English language tells us not to expect.” Again in Lopez, as in Leocal, the Court indicated no reliance on the agency interpretation of the statute. In Habibi, the natural reading of “aggravated felony,” unmediated through the Executive agency, militates against treating a 365-day misdemeanor sentence as a qualifying conviction.

While the Lopez and Leocal litigation involved large numbers of clients who suffered years of over-incarceration, the number of defendants potentially affected by Habibi is undoubtedly much smaller. But for clients facing sharp increases in sentencing exposure based on 365-day sentences, we should be prepared to litigate the position that a year means a real year in the criminal context, asserting that Habibi’s failure to address Leocal and Lopez invalidates its precedential effect under the criminal statute and guidelines. And we should be vigilant in looking critically at all civil immigration cases that, while failing to apply the narrowing rules of construction for penal statutes, construe immigration statutes broadly, thereby increasing the potential level of criminal punishment.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon