Should a parent's years of residence after lawful admission be imputed to an alien who resided with that parent as an unemancipated minor for purposes of satisfying the residency requirements of U.S.C. 1229b(a)?
In Holder v. Gutierrez and Holder v. Sawyers, the Supreme Court will determine whether aliens may impute their parents’ time spent lawfully residing in the United States to satisfy residency requirements for cancellation of removal under Section 1229b. In both cases, the individuals entered the United States as children, lived with their legal permanent resident parents, and later became inadmissible due to violations of the law. Attorney General Eric Holder argues that the plain language of 1229b does not allow imputation, and that allowing imputation would be contrary to congressional intent. On the other hand, Respondents Gutierrez and Sawyers contend that Congress intended the Immigration and Nationality Act to preserve family unity. They argue that interpreting the statute to disallow imputation would be unreasonable and contrary to congressional intent. If the Supreme Court upholds the imputation rule, aliens who resided with their legal permanent resident parents as minors would be able to impute the their parents’ residency period to satisfy the requirements for cancellation of removal under 1229(b).
Questions as Framed for the Court by the Parties
Questions Presented for 10-1542 [Holder v. Gutierrez]
1. Whether a parent's years of lawful permanent resident status can be imputed to an alien who resided with that parent as an unemancipated minor, for the purpose of satisfying 8 U.S.C. 1229b(a)(1)'s requirement that the alien seeking cancellation of removal have "been an alien lawfully admitted for permanent residence for not less than 5 years."
2. Whether a parent's years of residence after lawful admission to the United States can be imputed to an alien who resided with that parent as an unemancipated minor, for the purpose of satisfying 8 U.S.C. 1229b(a)(2)'s requirement that the alien seeking cancellation of removal have "resided in the United States continuously for 7 years after having been admitted in any status."
Questions Presented for 10-1543 [Holder v. Sawyers]
Whether a parent's years of residence after lawful admission to the United States can be imputed to an alien who resided with that parent as an unemancipated minor, for the purpose of satisfying 8 U.S.C. 1229b(a)(2)'s requirement that the alien seeking cancellation of removal have "resided in the United States continuously for 7 years after having been admitted in any status."
Factual Background for Holder v. Gutierrez
In 1989, respondent Carlos Martinez Gutierrez illegally entered the United States to reside with his parents at the age of five. Two years later, his father obtained Legal Permanent Resident (“LPR”) status. In 2003, at the age of 19, Gutierrez also obtained LPR status. Since arriving in the United States, Gutierrez has lived with his parents and two siblings, one of whom is a U.S. citizen. . He has had little to no contact with individuals in Mexico. In 2005, Gutierrez was apprehended at the border while attempting to re-enter the United States with illegal aliens. He was subsequently issued a Notice to Appear charging him with inadmissibility under 8 U.S.C. 1182(a)(6)(E)(i).
Gutierrez sought cancellation of removal pursuant to 8 U.S. C. 1229b(a), which requires an alien to (1) have been an alien lawfully admitted for permanent residence for not less than 5 years and to (2) have resided in the United States continuously for 7 years after being admitted in any status.
During Gutierrez’s initial hearing, the immigration judge found him eligible for cancellation of removal even though he did not satisfy the two residency requirements outlined above. Based on the holding in a Ninth Circuit case,,the judge allowed Gutierrez to rely on the years of his father’s lawful admission after attaining LPR status to satisfy both requirements. The Board of Immigration Appeals (“BIA”) reversed the immigration judge’s holding, distinguishing the statute at issue in Cuevas-Gaspar from §§ 1229(b)(1) and (2). TheNinth Circuit subsequently granted Gutierrez’s petition for review and remanded to the BIA for reconsideration in light of new Ninth Circuit cases that held Cuevas-Gaspar to be binding for purposes of 1229(b)(1) and (2). .
Factual Background for Holder v. Sawyer
Respondent Damien Antonio Sawyers was admitted to the United States and became a lawful permanent resident in 1995, at the age of fifteen. His mother had held LPR status since Sawyers was nine years old, in 1989. In 2002, Sawyers was convicted of “maintaining a dwelling for keeping controlled substances,” and the government began removal proceedings against him.
The immigration judge found that he was removable and ineligible for cancellation of removal because he failed to satisfy the 7-year residency requirement. The immigration judge did not expressly discuss imputing Sawyer’s mother’s years of lawful residence for purposes of § 1229(b)(2). The BIA affirmed, acknowledging Cuevas-Gaspar v. Gonzales, yet choosing to follow the holding in a more recent BIA case, where the Board declined to extend the imputation rule to § 1229(b)(1)’s five-year LPR status requirement. However, the Ninth Circuit subsequently reversed the BIA’s decision, holding that the BIA must use the imputation rule in Sawyers’s case and tack on his mother’s year of LPR residency for purposes of satisfying the residency requirements of § 1229(b).
Section 1229b of the Immigration and Nationality Act ("INA") requires an alien seeking cancellation of removal from the United States to have been lawfully admitted for permanent residence for at least five years, or to have resided continuously for seven years in the United States after being admitted. The United States Court of Appeals for the Ninth Circuit recently held, in Mercado-Zazueta v. Holder, that a minor child can impute a parent’s lawful residence period for the purpose of satisfying Section 1229b. Respondents Gutierrez and Sawyer are seeking to persuade the Supreme Court that this holding is correct, and that it should be applied to them.
Does Section 1229b’s Plain Language Permit Imputation?
Petitioner Eric Holder argues that the statutory language of Section 1229b does not permit an alien seeking cancellation of removal to impute a parent’s period of residence to satisfy the eligibility requirements. Holder contends that the plain language of the statute calls for consideration of the alien’s status alone, not that of a parent or other individual, in determining whether the alien satisfied the eligibility requirements. He also argues that, while Section 1229b does not expressly bar imputation, the statute does not affirmatively permit imputation; indeed, it would be unreasonable and difficult for a statute to disallow every possible option.
Respondent Gutierrez counters that, while the text of the statute is silent as to whether imputation is permitted, allowing imputation would be in line with the plain language of Section 1229b. Respondent Sawyers argues that imputation is implied in the context of Section 1229b, although the text of the statute does not expressly permit or deny imputation. The Respondents claim that other immigration statutes use similar language, and that courts have permitted imputation in those contexts. Gutierrez argues that the Supreme Court has approved imputation in other contexts when the statute was silent. Gutierrez adds that imputation is not contrary to the plain language of the statute because, while the parent’s period of residence would be given consideration, the alien would still need to meet the durational requirements listed in Section 1229b.
Is Imputation Consistent with Congressional Intent?
Holder argues that imputation is inconsistent with Congress’s intent in drafting the statute because Congress created specific requirements in the subsections of Section 1229b that an alien must satisfy to be eligible for cancellation of removal. Holder contends that Congress would have added a subsection allowing imputation of a parent’s residency if it wanted to do so because Congress has allowed alien children to benefit from their parents’ status in other immigration statutes. Holder also argues that there is no legislative history indicating that imputation should be permitted, because Congress did not consider imputation when it enacted Section 1229b. Holder claims that Congress was instead concerned that the statute would be construed outside of its narrow limits; Congress wanted the eligibility rules to prevent aliens convicted of crimes from obtaining cancellation of removal, and to prevent aliens from accruing time to meet the residency requirement.
Gutierrez counters that Congress’s goals in enacting Section 1229b were to allow legal aliens residing in the United States to be eligible for cancellation of removal, and to protect the unity of the immediate family. Gutierrez argues that imputation is consistent with congressional intent because it works to maintain the family unit, which Congress considers to be a central purpose of immigration law. Sawyers agrees that imputation is consistent with congressional intent to favor children and maintain family unity. Sawyers also contends that imputation is consistent with congressional intent because Congress liberalized the requirements for aliens to demonstrate residence in the United States when it amended Section 1229b. Sawyers argues that the amendments Congress made to the statutory language of Section 1229b in 1996 were to resolve issues unrelated to imputation, and that Congress did not intend to prohibit imputation when it amended the statute.
Are the BIA’s Decisions Entitled to Deference?
Holder argues that the Board of Immigration Appeals should be accorded deference based on the Supreme Court’s holding in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. In Chevron, the Supreme Court held that, when a court reviews an agency’s decision and the statute is silent or ambiguous, the Court must decide whether the agency’s decision is based on a permissible statutory construction. Holder claims that Section 1229b is a broad statute and the BIA’s decision is permissible under Chevron because it reasonably interpreted the statute.
Gutierrez and Sawyers counter that the BIA is not entitled to deference because Section 1229b is not ambiguous. Gutierrez argues that deference is not warranted because, rather than claiming that it was interpreting a statute that was silent or ambiguous, the BIA prohibited imputation because it considered imputation to be contrary to the plain language of Section 1229b. Sawyers argues that the statute was unambiguous because courts construe ambiguities in immigration statutes in favor of the alien. Gutierrez and Sawyers contend that the BIA is not entitled to deference, even if the statute is ambiguous, because the BIA’s decision is not based on a reasonable construction of Section 1229b. Gutierrez argues that the BIA’s interpretation of Section 1229b is impermissible because the amendment of the cancellation of removal statute was not intended to alter circuit courts’ uniform interpretation of the statute allowing imputation of a parent’s status to a child. Gutierrez further argues that the BIA’s interpretation of the statute is unreasonable because it is contrary to the statute’s objective of protecting lawful permanent residents who have strong ties to the United States, and to Congress’s goal of maintaining family unity through the immigration laws.
Reasonableness of Allowing Imputation
Respondent Carlos Martinez Gutierrez argues that Section 1229b(a)’s objective is to provide relief to aliens with strong ties to the United States. Gutierrez contends that the Board of Immigration Appeals’ (“BIA”) refusal to allow imputation is inconsistent with the objective of this statute, since the imputation rule would only apply to a narrow pool of aliens whose families have decided to make their home in the United States. Furthermore, Gutierrez maintains that it would be unreasonable to deny imputation to individuals who are unable to meet the residency requirements due to visa backlogs and delays in their adjustment of status that were beyond their control.
On the other hand, Petitioner Holder argues that the limited legislative history reveals Congress’ intention to stop the running of an alien’s years of residence at a defined point, and to clarify the previously domicile-based requirements of physical presence under § 212(c) of the Immigration & Nationality Act (“INA”). Holder contends that nothing in the legislative history indicates Congress' intent to allow an LPR status period to be imputed to anyone other than the alien himself. Furthermore, Holder maintains that, even though the previously domicile-based residency requirements of § 212(c) may have been interpreted to impute a parent’s residency years to a minor, imputation is unreasonable under the current statute because it is based on residence, not domicile. Holder points out that imputation was allowed when the statute was based on domicile because a minor is incapable of forming the requisite intent, whereas residence does not have an intent requirement.
Immigration Law’s Preference for Family Unity
Respondent Damien Antonio Sawyers contends that the INA is designed to promote family unity. Sawyers argues that it would be contrary to the overall purpose of the INA to deny children the ability to impute their parents' continual residence to fulfill the residency requirements for cancellation of removal under section 1229b.
On the other hand, Petitioner Holder argues that the general preference for family unity does not trump § 1229b(a) without direct evidence of congressional intent. Moreover, Holder argues that immigration law’s preference for family unity is not absolute. Holder points out the fact that Congress has not addressed the backlog of family-based visas, even though the backlog has existed for decades. In those situations, Holder contends, immediate family members of LPRs often have to wait several years to reunite with their families in the United States. Yet, as Holder points out, Congress has not sought to eliminate this problem, and thus has not categorically placed a preference for unifying children with their LPR parents above the requirements of immigration law.
However, Gutierrez argues that, through the INA, Congress intended to provide liberal treatment for children. Specifically, he argues that the Child Protection Status Act (“CPSA”) is evidence of Congress’ intent to provide protection for family unity. Gutierrez contends that, since the CPSA considers a minor’s age as of the date the child’s parents file an I-130 form, the statute protects the status of minor children as they proceed through the immigration process. Gutierrez argues that, although the policy of promoting family unity is not absolute, Congress was silent on the question of imputation in section 1229b(a), and it would be unreasonable for the agency to interpret the statute in a way that contradicts the statute’s purpose.
Sawyers also asserts that allowing imputation would not affect the Attorney General’s power. He points out that the Attorney General still retains final authority to deny cancellation of removal, because allowing imputation would only permit an alien to be eligible for relief, without assuring it. Sawyers argues that allowing imputation will enable the Attorney General to exercise his discretion in determining whether an alien should receive relief.
In Holder v. Gutierrez and Holder v. Sawyers, the Supreme Court will determine whether aliens may apply their parents’ period of lawful residence in the United States to satisfy requirements for cancellation of removal under Section 1229b of the Immigration and Nationality Act. Holder contends that Section 1229b does not permit imputation and that imputation is contrary to congressional intent. Gutierrez and Sawyers counter that the statute permits imputation and that Congress intended to allow imputation of a parent’s period of residence to a child because one of the purposes of immigration law is to provide for family unity. Holder also argues that the Board of Immigration Appeals is entitled to deference by the courts because the BIA reasonably interpreted the statute in deciding whether to grant cancellation of removal. Gutierrez and Sawyers counter that the BIA is not entitled to deference because Section 1229b is not ambiguous and the BIA unreasonably construed the statute.
The New York Times, Adam Liptak: Justices Will Hear Appeals on Immigrants’ Residence (Sept. 27, 2011)
Arizona Daily Star: Justices to Rule on Deportations (Sept. 28, 2011)
Indiana Legal Services, Inc.: Obtaining Legal Residence Through Cancellation of Removal (Nov. 2002)