A recent article in U.S. News and World Report, quoted Mary Giovagnoli, Director of the...
Court Finds Parent's Residence and Status is Not Imputed to Child for Cancellation of Removal
Holder v. Martinez Gutierrez, 566 U.S. ___, 132 S. Ct. 2011 (2012)
The Supreme Court unanimously affirmed a Board of Immigration Appeals (“BIA”) decision barring lawful permanent resident (“LPR”) children seeking cancellation of removal from using their parents’ years of U.S. residence or LPR status to satisfy the seven-year continuous residency or five-year LPR status requirements under INA § 240A(a). In so doing, the Court reversed the Ninth Circuit, see Mercado-Zazueta v. Holder, 580 F.3d 1102 (9th Cir. 2009).
The Supreme Court held that the BIA’s construction of the cancellation of removal statute was permissible under Chevron. Justice Kagan, writing for the Court, began the analysis by noting that the statute’s plain text did not mandate imputation. The Court then went on to reject arguments that (1) the legislative history demonstrates that Congress intended a parent’s residency and status to be imputed to a child for purposes of cancellation of removal and (2) the statute’s goals of family unity demand imputation.
The Court also explained that the regulation is not arbitrary and capricious despite the BIA’s acceptance of imputation in other contexts. The Court found that the BIA consistently “imputes matters involving an alien’s [subjective] state of mind, while declining to impute objective conditions or characteristics” such as duration of residence.