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Removal of Alien, 8 U.S.C. §1229b(a) – Parent’s Status not Imputed to Child

Holder v. Carlos Martinez Gutierrez, USSC No. 10-1542, 5/21/12, reversing 411 Fed. Appx. 121 and 399 Fed. Appx. 313

The Attorney General has discretion under 8 U.S.C. §1229b(a) to allow otherwise-removable aliens to remain in the U.S., if the alien satisfies three criteria: minimum of five years as a lawful permanent resident; continuous residence in the U.S. for at least seven years after lawful admission, as an LPR or otherwise; no conviction for an aggravated felony. The question here is whether the years of a parent’s continuous residence, or LPR status, may be imputed to a child who would otherwise not meet the criteria. The 9th Circuit held that offenders falling short of this duration requirement nonetheless could have their parents’ time in the country imputed to them. But the Court now unanimously rejects that view.

The Board has required each alien seeking cancellation of removal to satisfy §1229b(a)’s requirements on his own, without counting a parent’s years of continuous residence or LPR status. That position prevails if it is a reasonable construction of the statute, whether or not it is the only possible interpretation or even the one a court might think best. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843–844, and n. 11 (1984); see also INS v. Aguirre-Aguirre, 526 U. S. 415, 424–425 (1999) (according Chevron deference to the Board’s interpretations of the INA). We think the BIA’s view on imputation meets that standard, and so need not decide if the statute permits any other construction.

The Board’s approach is consistent with the statute’s text, as even respondents tacitly concede. Section 1229b(a) does not mention imputation, much less require it. The provision calls for “the alien”—not, say, “the alien or one of his parents”—to meet the three prerequisites for cancellation of removal. Similarly, several of §1229b(a)’s other terms have statutory definitions referring to only a single individual. See, e.g., §1101(a)(13)(A) (“The terms ‘admission’ and ‘admitted’ mean, with respect to an alien, the lawful entry of the alien into the United States” (emphasis added)); §1101(a)(33) (“The term ‘residence’ means the place of general abode; the place of general abode of a person means his principal, actual dwelling” (emphasis added)). Respondents contend that none of this language “forecloses” imputation: They argue that if the Board allowed imputation, “[t]he alien” seeking cancellation would “still have to satisfy the provision’s durational requirements”—just pursuant to a different computational rule. Brief for Respondent Martinez Gutierrez in No. 10– 1542, p. 16 (hereinafter Martinez Gutierrez Brief); see Brief for Respondent Sawyers in No. 10–1543, pp. 11, 15 (hereinafter Sawyers Brief). And they claim that the Board’s history of permitting imputation under similarly “silent” statutes supports this construction. Martinez Gutierrez Brief 16; see Sawyers Brief 15–16; infra, at 10– 11. But even if so—even if the Board could adopt an imputation rule consistent with the statute’s text—that would not avail respondents. Taken alone, the language of §1229b(a) at least permits the Board to go the other way— to say that “the alien” must meet the statutory conditions independently, without relying on a parent’s history.

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