Escobar v. Holder

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KATTIA GUADALUPE ESCOBAR,  Nos. 07-72843

Petitioner,

08-71777

v.

 Agency No.

ERIC H. HOLDER JR., Attorney A075-504-052

General,

OPINION

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

December 8, 2008—Pasadena, California

Filed May 27, 2009

Before: Jerome Farris, Susan P. Graber,* and

Kim McLane Wardlaw, Circuit Judges.

Opinion by Judge Wardlaw;

Concurrence by Judge Graber

*Judge Susan P. Graber was drawn to replace Judge William W

Schwarzer pursuant to General Order 3.2(g). Judge Graber has read the

briefs, reviewed the record, and listened to the recording of oral argument

held on December 8, 2008.

6187

ESCOBAR v. HOLDER 6191

COUNSEL

Christopher J. Stender, Stender & Lappin, PC, San Diego,

California, for the petitioner.

Carol Federighi, Office of Immigration Litigation, U.S.

Department of Justice, Civil Division, Washington, D.C., for

the respondent.

OPINION

WARDLAW, Circuit Judge:

We must decide whether our decision in Cuevas-Gaspar v.

Gonzales, 430 F.3d 1013 (9th Cir. 2005), compels the conclu-

sion that a parent’s status as an alien lawfully admitted for

permanent residence may be imputed to an unemancipated

minor child residing with that parent, for purposes of satisfy-

ing the five-year permanent residence requirement for cancel-

lation of removal under section 240A(a)(1) of the

Immigration and Nationality Act (“INA”), 8 U.S.C.

§ 1229b(a)(1). Because the rationale and holding of Cuevas-

Gaspar apply equally to the five-year permanent residence

and the seven-year continuous residence requirements, we

conclude that it does.

I. FACTUAL AND PROCEDURAL BACKGROUND

Kattia Guadalupe Escobar (“Escobar”) is a native and citi-

zen of El Salvador. She came to the United States and settled

in California with her mother in the early 1980s, when she

6192 ESCOBAR v. HOLDER

was approximately five years old. Her mother adjusted her

status to lawful permanent residence on March 3, 1992, when

Escobar was thirteen. Escobar herself attained lawful perma-

nent resident status on February 15, 2003. She has two U.S.

citizen children.

On August 12, 2006, after Escobar attempted to drive an

undocumented Mexican child across the border from Tijuana,1

the Department of Homeland Security (“DHS”) issued a

Notice to Appear charging Escobar with removability under

section 212(a)(6)(E)(i) of the INA, 8 U.S.C.

§ 1182(a)(6)(E)(i) (“Any alien who at any time knowingly has

encouraged, induced, assisted, abetted, or aided any other

alien to enter or to try to enter the United States in violation

of law is inadmissible.”).

In removal proceedings, the immigration judge (“IJ”) found

Escobar removable under section 212(a)(6)(E)(i) and held that

she was ineligible for cancellation of removal as a lawful per-

manent resident. Title 8 U.S.C. § 1229b(a) provides for can-

cellation of removal for a permanent resident who “(1) has

been an alien lawfully admitted for permanent residence for

not less than 5 years, (2) has resided in the United States con-

tinuously for 7 years after having been admitted in any status,

and (3) has not been convicted of any aggravated felony.”

Under Cuevas-Gaspar, the seven-year continuous residence

requirement in subsection (a)(2) was satisfied for Escobar by

imputing the 1992 admission of her mother for permanent res-

idence. See 430 F.3d at 1023-24. However, the IJ determined

that Escobar’s mother’s status could not be imputed to satisfy

1

While Escobar was in Tijuana, she agreed to take the child across the

border to see his mother, who was near death in a hospital in the United

States. In a sworn statement given to Border Patrol officers shortly after

they discovered the child’s identity, Escobar admitted that she had known

the boy lacked the appropriate documents when she attempted to drive

him across the border. Aside from the Notice to Appear, no other convic-

tions, charges, or government action resulted from this incident.

ESCOBAR v. HOLDER 6193

the five-year permanent residence requirement in subsection

(a)(1).

Escobar appealed to the Board of Immigration Appeals

(“BIA”), raising only the issue of her eligibility for cancella-

tion of removal. In a published decision, the BIA noted its

disagreement with Cuevas-Gaspar, declined to apply Cuevas-

Gaspar’s holding to allow imputation for the five-year perma-

nent residence requirement, and dismissed Escobar’s appeal.

In re Escobar, 24 I. & N. Dec. 231 (BIA 2007). Escobar filed

a timely petition for review on July 19, 2007.

More than five months later, Escobar submitted a motion

to reopen to the BIA, raising the new argument that it was

legally impossible to have “encouraged, induced, assisted,

abetted, or aided” a minor, age eight, “to enter or to try to

enter the United States” illegally, because a child of that age

lacked the capacity to intend “to enter.” 8 U.S.C.

§ 1182(a)(6)(E)(i). The BIA denied her motion in a one-judge

per curiam decision on April 4, 2008, as untimely. The BIA

also stated that, even if it were “to reopen proceedings sua

sponte, the respondent has failed to establish a likelihood of

success on the merits of her claim.” Escobar timely appealed

the denial of her motion to reopen, and we consolidated the

petitions for review. See 8 U.S.C. § 1252(b)(6).

II. JURISDICTION AND STANDARD OF REVIEW

Under 8 U.S.C. § 1252(a)(2)(D), we have jurisdiction to

review constitutional claims and questions of law involved in

the otherwise discretionary decision to deny cancellation of

removal. See Mota v. Mukasey, 543 F.3d 1165, 1167 (9th Cir.

2008). Although we review de novo questions of law, we

defer to the BIA’s interpretation of immigration laws unless

the interpretation is “clearly contrary to the plain and sensible

meaning of the statute.” Id. (internal quotation marks omit-

ted). We review the BIA’s denial of a motion to reopen for

an abuse of discretion. Cardoso-Tlaseca v. Gonzales, 460

6194 ESCOBAR v. HOLDER

F.3d 1102, 1106 (9th Cir. 2006). “An abuse of discretion will

be found when the denial was arbitrary, irrational or contrary

to law.” Oh v. Gonzales, 406 F.3d 611, 612 (9th Cir. 2005)

(internal quotation marks omitted).

III. DISCUSSION

A. Escobar’s Eligibility for Cancellation of Removal

1. Imputation of Status, Intent, and State of Mind to Un-

emancipated Minor Children

[1] “[B]oth the BIA and this court repeatedly have held that

a parent’s status, intent, or state of mind is imputed to the par-

ent’s unemancipated minor child in many areas of immigra-

tion law, including asylum, grounds of inadmissibility, and

legal residency status.” Cuevas-Gaspar, 430 F.3d at 1024; see

also, e.g., Vang v. INS, 146 F.3d 1114, 1116-17 (9th Cir.

1998) (imputing a parent’s “firm resettlement” under 8 C.F.R.

§ 1208.15 to a sixteen-year-old minor); Senica v. INS, 16 F.3d

1013, 1015-16 (9th Cir. 1994) (imputing a parent’s knowl-

edge of ineligibility for admission to that parent’s minor chil-

dren to deny their application for discretionary admission

under 8 U.S.C. § 1182(k)); Matter of Huang, 19 I. & N. Dec.

749, 750 n.1 (BIA 1988) (“Abandonment of lawful permanent

resident status of a parent is imputed to a minor child who is

subject to the parent’s custody and control.” (citing Matter of

Winkens, 15 I. & N. Dec. 451 (BIA 1975)). As we explain in

a companion case, also filed today, “[w]e have allowed impu-

tation precisely because the minor either was legally incapa-

ble of satisfying one of these criteria or could not reasonably

be expected to satisfy it independent of his parents.” Ramos

Barrios v. Holder, No. 06-74983, at 6292-93 (9th Cir. 2009).2

2

In Ramos Barrios, we declined to impute a parent’s “physical pres-

ence” for purposes of satisfying the requirement set forth in 8 C.F.R.

§ 1240.66(b)(2). See Ramos Barrios, No. 06-74983, at 6285-98. In declin-

ing to impute physical presence, we stressed that “the definition of ‘physi-

ESCOBAR v. HOLDER 6195

On several occasions, we have confronted situations in which

a parent would qualify for relief under section 240A(a) or its

predecessor, section 212(c),3 while a child who at all times

had been in the physical custody of that parent would not. In

recognition of the fundamental concerns motivating this form

of discretionary relief, we have consistently imputed a par-

ent’s satisfaction of the provision’s status requirements to the

unemancipated minor children in that parent’s custody.

a. Section 212(c) and Lepe-Guitron

In Lepe-Guitron, we considered whether, “under section

212(c), a parent’s lawful unrelinquished domicile is imputed

to his or her minor children.” 16 F.3d at 1022. Concluding

that imputation was appropriate, we first distinguished our

holding in Castillo-Felix that “ ‘to be eligible for [section

212(c)] relief, aliens must accumulate seven years of lawful

unrelinquished domicile after their admission for permanent

residence.’ ” Id. at 1024 (quoting Castillo-Felix v. INS, 601

F.2d 459, 467 (9th Cir. 1979)). In light of “crucial differ-

ences” between the applicant in Castillo-Felix, who had

entered the United States illegally and acquired permanent

resident status only after marrying, and Lepe-Guitron, who

had entered legally with his parents and was “always legally

within the country,” but nevertheless “acquired permanent

cal presence’ does not require a specific status, intent, or state of mind,”

id. at 6294 (internal quotation marks omitted), unlike the terms at issue in

Lepe-Guitron v. INS, 16 F.3d 1021 (9th Cir. 1994), Cuevas-Gaspar, and

our other imputation precedent, see Ramos Barrios, No. 06-74983, at

6291-94.

3

INA section 240A(a), 8 U.S.C. § 1229b(a), governs cancellation of

removal for permanent residents. The provision was enacted as part of the

Illegal Immigration Reform and Immigrant Responsibility Act of 1996

(“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996), to

replace and modify a similar form of relief previously available under INA

section 212(c), 8 U.S.C. § 1182(c) (repealed 1996). See IIRIRA § 304(b),

110 Stat. 3009-597; INS v. St. Cyr, 533 U.S. 289, 297 (2001).

6196 ESCOBAR v. HOLDER

resident status . . . many years after his parents achieved it,”

we concluded that Castillo-Felix did not foreclose the possi-

bility of imputation. On the contrary, we found a “number of

persuasive reasons to hold that a child’s ‘lawful unrelinqui-

shed domicile’ under section 212(c) is that of his or her par-

ents.” Id.

First, we observed that the “position espoused by the gov-

ernment would subvert the fundamental policies animating

section 212(c).” Id. Severing the “bonds between parents and

their children who had resided legally in the United States for

the better part of their lives” would frustrate the section’s

“just and humane goal of providing relief to those for whom

deportation would result in peculiar or unusual hardship.” Id.

at 1024-25 (citations and internal quotation marks omitted).

Thus, “section 212(c)’s core policy concerns would be

directly frustrated by the government’s proposal to ignore the

parent’s domicile in determining that of the child.” Id. at

1025. The existence of other “sections of the INA giving a

high priority to the relationship between permanent resident

parents and their children” lent strength to this analysis.4 Id.

4

We explained the high priority given to alien children in the context of

visa preferences and waiver:

Sections 1152 and 1153, which allocate the annual quota of

immigrant visas, provide a preference for the alien children of

United States residents and citizens. 8 U.S.C. §§ 1152(a)(4),

1153(a)(1) & (2). In considering applications for permanent resi-

dent status, a child residing outside the United States is given the

same priority date and preference category as that of his or her

parents. [8 C.F.R. § 1245.1(e)(vi)(B)(1)]. The Act even provides

a waiver of excludability for certain immigrants who have helped

their alien children enter the United States illegally. 8 U.S.C.

§ 1182(a)(6)(E)(ii) (family reunification waiver).

Lepe-Guitron, 16 F.3d at 1025; see also Solis-Espinoza v. Gonzales, 401

F.3d 1090, 1094 (9th Cir. 2005) (“The [INA] was intended to keep fami-

lies together. It should be construed in favor of family units and the accep-

tance of responsibility by family members.”); H.R. Rep. No. 85-1199, pt.

2 (1957), reprinted in 1957 U.S.C.C.A.N. 2016, 2020 (stating that the

“legislative history of the [INA] clearly indicates that the Congress

intended to provide for a liberal treatment of children and was concerned

with the problem of keeping families of United States citizens and immi-

grants united”).

ESCOBAR v. HOLDER 6197

[2] Second, Congress’s use of the term “domicile” rein-

forced the imputation of this form of status, because children

are, “legally speaking, incapable of forming the necessary

intent to remain indefinitely in a particular place,” id., and

thus cannot determine their own domicile, id. at 1025-26. We

therefore held that “parents’ ‘lawful unrelinquished domicile’

should be imputed to their minor children under section

212(c).” Id. at 1026 (quoting 8 U.S.C. § 1182(c)). The Second

and Third Circuits, the only other circuits to consider this

issue before IIRIRA repealed section 212(c), reached the

same conclusion, imputing a parent’s accumulation of lawful

unrelinquished domicile to that parent’s minor children. See

Rosario v. INS, 962 F.2d 220, 222-25 (2d Cir. 1992); Morel

v. INS, 90 F.3d 833, 840-42 (3d Cir. 1996), vacated on other

grounds, 144 F.3d 248 (3d Cir. 1998).

b. Section 240A(a) and Cuevas-Gaspar

We first considered the possibility of imputation under sec-

tion 240A(a) in Cuevas-Gaspar. See 430 F.3d at 1021-29.

Facing removal due to a 2002 conviction for a crime involv-

ing moral turpitude, Cuevas-Gaspar satisfied section

240A(a)(1)’s five-year permanent residence requirement.

However, the IJ found him ineligible for cancellation of

removal because he had not satisfied section 240A(a)(2)’s

seven-year continuous residence requirement, although he had

lived in the United States since 1985, when he was one year

old. Id. at 1016-17; 8 U.S.C. § 1229b(a)(1), (2). The BIA

affirmed in a reasoned opinion, rejecting Cuevas-Gaspar’s

argument that Lepe-Guitron allowed the imputation of his

mother’s continuous residence as a permanent resident to sat-

isfy the seven-year requirement. Cuevas-Gaspar, 430 F.3d at

1017, 1021.

[3] Because the BIA interpreted section 240A(a) in its

opinion, we applied Chevron deference in our review, asking

“(1) whether ‘the statute is silent or ambiguous with respect

to the specific issue,’ and if so (2) whether the agency’s inter-

6198 ESCOBAR v. HOLDER

pretation is based on a reasonable, permissible construction of

the statute.” Cuevas-Gaspar, 430 F.3d at 1021 (quoting Chev-

ron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S.

837, 843 (1984)). After concluding that section 240A(a) is

silent regarding imputation, id. at 1022, we took up the “tools

of statutory construction” to assess “whether the BIA’s inter-

pretation of § 1229b(a) as being unamenable to imputation is

a reasonable one,” id. at 1024. Examining Lepe-Guitron, the

legislative history of section 240A(a), and the statutory frame-

work of the INA, we concluded that the BIA’s interpretation

was unreasonable, see id. at 1024-29, and held that “for pur-

poses of satisfying the seven-years of continuous residence

‘after having been admitted in any status’ required for cancel-

lation of removal under 8 U.S.C. § 1229b(a), a parent’s

admission for permanent resident status is imputed to the par-

ent’s unemancipated minor children residing with the parent,”

id. at 1029.

2. The Statutory Framework and Congressional Intent

Before its repeal, section 212(c) provided that “[a]liens

lawfully admitted for permanent residence who temporarily

proceeded abroad voluntarily and not under an order of depor-

tation, and who are returning to a lawful unrelinquished domi-

cile of seven consecutive years, may be admitted in the

discretion of the Attorney General.” 8 U.S.C. § 1182(c)

(repealed 1996).5

In applying section 212(c), the courts of appeals developed

conflicting interpretations of its requirement that permanent

residents demonstrate “a lawful unrelinquished domicile of

seven consecutive years.” Id. Our circuit and the Fourth Cir-

cuit followed the BIA’s longstanding interpretation, restrict-

5

Although section 212(c) “applies by its terms only to exclusion pro-

ceedings under subsection (a) of § 1182, judicial decisions . . . extended

its reach to deportation proceedings.” Lepe-Guitron, 16 F.3d at 1023; see

also St. Cyr, 533 U.S. at 294-97.

ESCOBAR v. HOLDER 6199

ing the accumulation of “lawful unrelinquished domicile” to

immigrants who had been admitted for permanent residence.

See Castillo-Felix, 601 F.2d at 467; Chiravacharadhikul v.

INS, 645 F.2d 248, 249-51 (4th Cir. 1981); Matter of S., 5 I.

& N. Dec. 116, 117-18 (BIA 1953). The Second, Third, and

Seventh Circuits disagreed, concluding that the domicile

requirement could be satisfied by lawful domicile prior to

admission as a lawful permanent resident, so long as the

immigrant was also eventually admitted for permanent resi-

dence. See Lok v. INS, 548 F.2d 37, 39-41 (2d Cir. 1977);

Morel, 90 F.3d at 837-40; Castellon-Contreras v. INS, 45

F.3d 149, 150 (7th Cir. 1995). The Fifth, Tenth, Eleventh, and

D.C. Circuits discussed the conflicting interpretations, but did

not decide the issue. See Madrid-Tavarez v. INS, 999 F.2d

111, 112-13 (5th Cir. 1993); Onwuneme v. INS, 67 F.3d 273,

274 n.1 (10th Cir. 1995); Melian v. INS, 987 F.2d 1521,

1523-25 (11th Cir. 1993); Anwo v. INS, 607 F.2d 435, 436-38

(D.C. Cir. 1979).

The legislative history confirms that by enacting IIRIRA,

Congress intended to address, among other things, the cir-

cuits’ varying interpretations of section 212(c). In 1995, the

Senate had considered a predecessor bill to IIRIRA entitled

the Immigration Enforcement Improvements Act, S. 754,

104th Cong. (1995). See 141 Cong. Rec. S6082-04, S6092

(May 3, 1995). In Title III, section 309(b)(1), the bill set forth

a cancellation of removal provision with the same basic

requirements as section 240A(a): five years of permanent resi-

dence, and seven years of continuous residence.6 In a section-

6

Section 309(b) provided, in relevant part:

The Attorney General may cancel deportation in the case of an

alien who is deportable from the United States and:

(1) is and has been a lawful permanent resident for at least 5

years who has resided in the United States continuously for 7

years after being lawfully admitted and has not been convicted of

an aggravated felony or felonies for which the alien has been sen-

tenced, in the aggregate, to a term of imprisonment of at least 5

years.

141 Cong. Rec. at S6098. The similarity between this provision and sec-

tion 240A(a) is readily apparent.

6200 ESCOBAR v. HOLDER

by-section analysis of the bill, the U.S. Department of Justice

stated that section 309(b) “would clarify an area of the law

regarding the cutoff periods for these benefits that have given

rise to significant litigation and different rules being applied

in different judicial circuits.” 141 Cong. Rec. at S6104.

[4] Section 240A(a) resolved the section 212(c) circuit split

with the same compromise that had been proposed in the

Immigration Enforcement Improvements Act, requiring at

least five years of residence after being “lawfully admitted for

permanent residence” and seven years of continuous resi-

dence “after having been admitted in any status.” 8 U.S.C.

§ 1229b(a)(1), (2). It is thus apparent that, in enacting section

240A(a), Congress “intended to clear up a longstanding dis-

agreement between the various courts of appeals and the BIA

regarding the type of status necessary to qualify for relief

under former § 212(c).” Cuevas-Gaspar, 430 F.3d at 1027;

see also Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1016

(9th Cir. 2006) (“Ultimately, Congress designed the dual

requirement of a five-year legal permanent residency and

seven-year continuous residence in any status,

§ 1229b(a)(1)(2), to clear up prior confusion and to strike a

balance between the conflicting interpretations . . . by count-

ing a limited period of time spent in non-permanent status

while still requiring at least five years of permanent resident

status.” (internal quotation marks omitted)).7

[5] Moreover, it is equally apparent that Congress’s modifi-

cations to section 212(c) were not intended to alter the avail-

ability of imputation to the unemancipated minor children of

parents who qualified for relief. The circuits did not split as

7

In enacting section 240A, Congress also intended to make cancellation

of removal unavailable to lawful permanent residents who had been con-

victed of aggravated felonies. See 8 U.S.C. § 1229b(a)(3); Cuevas-Gaspar,

430 F.3d at 1027 (citing St. Cyr, 533 U.S. at 297). However, this change

sheds no further light on Congress’s intent regarding the other require-

ments of section 240A(a).

ESCOBAR v. HOLDER 6201

to the underlying policy objectives motivating section 212(c),

but simply over the type of status necessary to satisfy “lawful

unrelinquished domicile.” Therefore, the fundamental goal

underlying this discretionary remedy—“to provide relief from

deportation for those who have lawfully formed strong ties to

the United States,” Lepe-Guitron, 16 F.3d at 1025—was unaf-

fected by this clarification of the requirements to secure that

relief.

3. The BIA’s Decision in In re Escobar

In denying Escobar’s direct appeal, the BIA disagreed with

our opinion in Cuevas-Gaspar and declined to apply our rea-

soning to the five-year residence requirement in section

240A(a)(1). See In re Escobar, 24 I. & N. Dec. at 233-35.

However, the holding, reasoning, and logic of Cuevas-Gaspar

apply equally to the resident status requirements of both sec-

tion 240A(a)(1) and 240A(a)(2), and thus imputation of the

custodial parent’s status to the minor is compelled.

a. Our Deference to the BIA

It is “well-established that Congress delegated to the BIA

the authority to promulgate rules, on behalf of the Attorney

General, that carry the force of law ‘through a process of

case-by-case adjudication.’ ” Garcia-Quintero, 455 F.3d at

1012 (quoting INS v. Aguirre-Aguirre, 526 U.S. 415, 425

(1999)). However, “only ‘selected decisions of the Board ren-

dered by a three-member panel or by the Board en banc may

be designated to serve as precedents.’ ” Id. at 1013 (quoting

8 C.F.R. § 1003.1(g)). Although the BIA’s published, three-

member decision in In re Escobar requires Chevron defer-

ence, we have previously applied Chevron and found the

BIA’s interpretation of section 240A(a) unreasonable. See

Cuevas-Gaspar, 430 F.3d at 1021-29. Indeed, when scruti-

nized, the BIA’s decision in In re Escobar cannot fairly be

characterized as a “new” interpretation of section 240A(a),

but is rather the same unreasonable interpretation we rejected

6202 ESCOBAR v. HOLDER

in Cuevas-Gaspar.8 Thus, our precedent guides our assess-

ment of the BIA’s interpretation under Chevron.

b. The Requirement of “Lawful” Admission for Perma-

nent Residence and the Question of Congressional

Intent

[6] Contrary to the government’s assertion, Cuevas-Gaspar

is controlling precedent for the imputation of “lawful perma-

nent resident status from a parent to a child.” In re Escobar,

24 I. & N. Dec. at 234. Further, although being “lawfully

admitted for permanent residence” is a term of art, defined in

8 U.S.C. § 1101(a)(20) as “the status of having been lawfully

accorded the privilege of residing permanently in the United

States as an immigrant in accordance with the immigration

laws, such status not having changed,” it does not follow that

allowing imputation for the five-year permanent residence

requirement would “run contrary to the clear intent of Con-

gress.” In re Escobar, 24 I. & N. Dec. at 234.

[7] First, review of the plain language of the statute demon-

strates that both sections 212(c) and 240A(a)(1) use a variant

of the word “lawful” in setting out their requirements. Section

212(c) required “lawful unrelinquished domicile,” and section

240A(a)(1) requires an applicant to have been “lawfully

admitted for permanent residence.” Thus, the government’s

emphasis on section 240A(a)(1)’s requirement of being “law-

fully admitted” is clearly misplaced. 24 I. & N. Dec. at 234.

If the change from requiring seven years of “domicile” to

seven years of residence “after having been admitted” did not

prevent imputation, see Cuevas-Gaspar, 430 F.3d at 1025-26,

surely the change from “lawful unrelinquished domicile” to

8

Indeed, the BIA’s reliance on the same arguments in In re Escobar to

reject both Escobar’s appeal and Cuevas-Gaspar confirms that the ratio-

nale for imputation under section 240A(a)(2) applies with equal force to

section 240A(a)(1), and that the BIA’s interpretive positions are indistin-

guishable.

ESCOBAR v. HOLDER 6203

“lawfully admitted for permanent residence” should have no

such effect. Indeed, when we decided Lepe-Guitron, we had

already held that “ ‘to be eligible for [section 212(c)] relief,

aliens must accumulate seven years of lawful unrelinquished

domicile after their admission for permanent residence.’ ” 16

F.3d at 1024 (quoting Castillo-Felix, 601 F.2d at 467). Thus,

by allowing imputation for minor children to satisfy the domi-

cile requirement, Lepe-Guitron “necessarily held that a par-

ent’s admission to permanent resident status is imputed to the

child” for purposes of section 212(c) relief. Cuevas-Gaspar,

430 F.3d at 1026. Accordingly, although the status require-

ment in section 240A(a)(1) is distinct, the distinction is not

relevant, and we again conclude that the change in terminol-

ogy is “not . . . so great as to be dispositive.” Id. at 1026.

[8] Second, because Escobar actually has been admitted for

permanent residence, it is beyond dispute that she has satis-

fied the substantive and procedural requirements of admission

for permanent residence.9 She has failed to satisfy only the

five-year component of this requirement, which was imposed

to probe the duration of an alien’s lawful ties to the United

States. See Cuevas-Gaspar, 430 F.3d at 1028-29. The govern-

ment’s defense of the BIA’s decision is thus flawed in two

critical respects: The decision is factually inaccurate in imply-

ing that Escobar has not satisfied the “mandated statutory and

regulatory application process and the substantive eligibility

requirements for admission.” In re Escobar, 24 I. & N. Dec.

at 234. The decision also erroneously suggests that imputing

status for the sole purpose of assessing eligibility for cancella-

tion of removal necessarily requires imputing in other con-

texts and with regard to other forms of relief. See id. at 234

n.4. Although the BIA asserts that “if imputation of a parent’s

lawful permanent residence would allow a minor alien to ful-

fill the requirements for cancellation of removal, the child

9

We therefore do not consider the imputation of lawful permanent resi-

dent status to an unemancipated minor who has never been admitted for

permanent residence.

6204 ESCOBAR v. HOLDER

would never have to become a lawful permanent resident in

his own right,” id. at 235, this is simply not the case. The pos-

sibility of cancellation only arises when removal proceedings

have been initiated. Many more benefits accrue to those who

attain lawful permanent resident status than the one avenue to

relief from removal, such as eligibility for employment, the

right to live permanently in the United States, the ability to

vote in state and local elections that do not require U.S. citi-

zenship, the ability to travel freely within and without the

United States, and the ability to pursue U.S. citizenship.

Imputing a parent’s status for purposes of cancellation would

convey none of these other significant and desirable benefits.

[9] Finally, the government wrongly asserts that allowing

imputation under section 240A(a)(1) would be “inconsistent

with the purpose of the [INA] and the intent of Congress

when it amended the statute to add the relief of cancellation

of removal for certain permanent residents.” Id. at 233. If sec-

tion 240A(a)’s silence regarding imputation suggests any-

thing, it suggests that Congress acquiesced in the unanimous

practice of the circuits to consider the issue, all of which had

found imputation appropriate under section 212(c). Regard-

less, in light of the statutory scheme and legislative history of

section 240A(a), allowing imputation for both the five- and

seven-year requirements would not “essentially destroy the

distinct tests mandated by Congress when it amended the stat-

ute,” id. at 234, because the distinct tests were created to

resolve a circuit split that did not concern imputation, see

Cuevas-Gaspar, 430 F.3d at 1027. As discussed, section

240A(a) was only intended to clarify “the type of status neces-

sary to qualify for relief.” Id. (emphasis added). Therefore,

unlike the “physical presence” at issue in Ramos Barrios,

which does not include “an element of status, intent, or state

of mind,” Ramos Barrios, No. 06-74983, at 6292, the status

requirements of section 212(c) and section 240A(a) are

equally amenable to imputation.

ESCOBAR v. HOLDER 6205

[10] Moreover, even with imputation, the requirements of

section 240A(a)(1) and (2) remain distinct, as all applicants

for cancellation of removal as permanent residents are still

required to demonstrate both five years spent as a lawful per-

manent resident and seven years of residence after admission

in any status.10 Applicants who have spent time in the United

States as the unemancipated minor children of lawful perma-

nent resident parents merely have an alternative mechanism to

demonstrate that they satisfy these distinct requirements—a

mechanism that is wholly consistent with, if not compelled

by, the statutory scheme. See Cuevas-Gaspar, 430 F.3d at

1029 (noting the well-established “congressional policy of

recognizing that presence in the United States of an extended

length gives rise to such strong ties to the United States that

removal would result in undue hardship”). Thus, allowing

imputation to satisfy section 240A(a)(1)’s five-year require-

ment would not be contrary in any way to congressional

intent.

c. The BIA’s Consistent Willingness To Impute in Other

Contexts

The government champions the BIA’s assertion that its

prior decisions do “not support the automatic imputation of

lawful permanent resident status from parent to child,” noting

that the cases cited in Cuevas-Gaspar “all deal with aliens

whose relatives abandoned their lawful permanent resident

status and the resulting imputation of the abandonment of that

status.” 24 I. & N. Dec. at 234 n.4. The government identifies

two reasons why this distinction is relevant.

First, the government notes that imputing the abandonment

of permanent resident status is consistent with the “longstand-

10

For example, an unemancipated minor who spent seven years in the

United States with parents who had not attained lawful permanent resident

status might be able to satisfy the seven-year requirement through imputa-

tion, but would not be able to satisfy the five-year requirement.

6206 ESCOBAR v. HOLDER

ing policy that a child cannot form the intent necessary to

establish his or her own domicile.” Id. This observation lacks

relevance; it is a distinction that makes no difference. The

argument appears to be that the abandonment of permanent

resident status requires intent, and therefore imputation is

appropriate, whereas the acquisition of permanent resident

status does not require intent, so imputation is not appropriate.

But we know of no authority for the proposition that intent,

standing alone, is the touchstone of imputation analysis. In

Cuevas-Gaspar, we dealt with a more cogent version of this

argument. See 430 F.3d at 1025. There, we rejected the asser-

tion that the status of “admission” could not be imputed

because, “unlike domicile, which depends on intent or capac-

ity, ‘admission’ does not depend on either intent or capacity.”

Id. As Cuevas-Gaspar suggests, it is unreasonable to impute

the abandonment of permanent resident status while refusing

to impute the acquisition of such status under section

240A(a). Indeed, while unemancipated minors may be techni-

cally capable of attaining lawful permanent resident status

without their parents’ assistance, it is not reasonable to expect

them to do so. The imputation of both domicile and perma-

nent resident status to minor children is appropriate, so far as

cancellation of removal is concerned, “precisely because the

minor either [is] legally incapable of satisfying one of these

criteria or could not reasonably be expected to satisfy it inde-

pendent of his parents.” Ramos Barrios, No. 06-74983, at

6292-93.

Second, the government’s insistence that “acquiring lawful

permanent resident status, with the attendant eligibility

requirements, is necessarily more complicated than abandon-

ing such status,” In re Escobar, 24 I. & N. Dec. at 234 n.4,

is similarly not probative. As noted, there is no dispute that

Escobar satisfied the “attendant eligibility requirements” to

acquire permanent resident status. Moreover, the fact that it

may be more complicated to acquire permanent resident status

than to abandon it does not provide any indication as to

whether imputation is more appropriate for one than the other.

ESCOBAR v. HOLDER 6207

If there is any reasonable conclusion to be drawn from that

fact, it is that the complications associated with acquiring per-

manent resident status favor imputation, as minor children are

less equipped to deal with those complications on their own.

[11] Accordingly, the BIA’s explanation of its inconsistent

imputation practices remains “ ‘so unclear or contradictory

that we are left in doubt as to the reason for the change in

direction.’ ” Marmolejo-Campos v. Holder, 558 F.3d 903, 914

(9th Cir. 2009) (en banc) (quoting Morales-Izquierdo v. Gon-

zales, 486 F.3d 484, 493 (9th Cir. 2007) (en banc)). In light

of this ill-explained and apparently arbitrary inconsistency,

Cuevas-Gaspar’s interpretation of section 240A(a) continues

to receive support from the observation that the BIA “repeat-

edly [has] held that a parent’s status, intent, or state of mind

is imputed to the parent’s unemancipated minor child in many

areas of immigration law, including asylum, grounds of inad-

missibility, and legal residency status.” Cuevas-Gaspar, 430

F.3d at 1024.

d. The BIA’s Interpretation of Section 240A(a)(1) Is

Unreasonable

We acknowledge that, at Chevron’s second step,

“[d]eference to an agency’s interpretation is especially appro-

priate in the immigration context where officials exercise

especially sensitive political functions that implicate questions

of foreign relations.” Morales-Izquierdo, 486 F.3d at 492

(internal quotation marks omitted). Further, “[a]t step two . . .

our function is ‘not simply [to] impose [our] own construction

on the statute, as would be necessary in the absence of an

administrative interpretation. Rather, . . . the question for the

court is whether the agency’s answer is based on a permissi-

ble construction of the statute.’ ” Id. at 492-93 (quoting Chev-

ron, 467 U.S. at 843).

[12] With this framework in mind, Cuevas-Gaspar compels

the conclusions that imputation under section 240A(a)(1) is

6208 ESCOBAR v. HOLDER

appropriate, and that a contrary interpretation of the statute is

not permissible.11 While agencies retain discretion to fill

ambiguous statutory gaps, it does not follow that an agency

may repeatedly put forward an interpretation that we already

have examined under Chevron and found unreasonable at its

second step.

[13] Moreover, the BIA’s interpretation of the statute

remains demonstrably contrary to the fundamental purposes

motivating the discretionary relief Congress made available in

section 240A(a). Escobar has spent almost her whole life

within the United States. When Escobar was only thirteen and

her mother attained lawful permanent resident status, Escobar

easily could have adjusted her own status as well, with the

assistance of her mother. Not only is it absurd to penalize

Escobar for her mother’s failure to include her in the adjust-

ment process, but it flies in the face of common sense to con-

clude that a lawful permanent resident such as Escobar, who

has spent more than two decades establishing a life in this

country, cannot be eligible for cancellation of removal, which

is premised on the longstanding “congressional policy of rec-

ognizing that presence in the United States of an extended

length gives rise to such strong ties to the United States that

removal would result in undue hardship.” Cuevas-Gaspar,

430 F.3d at 1029 (citing S. Rep. No. 1515, 81st Cong., 2d

Sess. 383 (1950)). Further, if Escobar had never attained law-

ful permanent resident status, her eligibility for cancellation

of removal would have been governed by section 240A(b),

under which she easily would have established that she had

been “physically present in the United States for a continuous

period of not less than 10 years.” 8 U.S.C. § 1229b(b)(1)(A).

11

It is noteworthy that at least one member of the BIA has also reached

this conclusion, albeit in an unpublished decision. See In re Guerra, No.

A77 988 500, 2007 WL 1129369 (BIA Feb. 13, 2007). We note also that

the Third Circuit recently repudiated the logic and holding of Cuevas-

Gaspar. See Augustin v. Attorney Gen., 520 F.3d 264 (3d Cir. 2008). We

are nonetheless bound to follow our circuit precedent.

ESCOBAR v. HOLDER 6209

Accordingly, we hold that, for purposes of satisfying the five

years of lawful permanent residence required under INA sec-

tion 240A(a)(1), 8 U.S.C. § 1229b(a)(1), a parent’s status as

a lawful permanent resident is imputed to the unemancipated

minor children residing with that parent.

e. Brand X and Duran Gonzales Do Not Alter Our

Analysis at Chevron’s Second Step

The BIA recently relied on In re Escobar to deny imputa-

tion for section 240A(a)(2)’s seven-year requirement within

our circuit, directly conflicting with our holding in Cuevas-

Gaspar. See Matter of Ramirez-Vargas, 24 I. & N. Dec. 599

(BIA 2008). In Matter of Ramirez-Vargas, the BIA applied

the Supreme Court’s decision in National Cable & Telecom-

munications Ass’n v. Brand X Internet Services, 545 U.S. 967

(2005) (“Brand X”),12 and our decision in Duran Gonzales v.

DHS, 508 F.3d 1227 (9th Cir. 2007),13 to conclude that its

subsequent interpretation of section 240A(a) in In re Escobar

had undermined the precedential value of Cuevas-Gaspar. See

Matter of Ramirez-Vargas, 24 I. & N. Dec. at 599. We dis-

agree.

12

In Brand X, the Supreme Court held that “[a] court’s prior judicial

construction of a statute trumps an agency construction otherwise entitled

to Chevron deference only if the prior court decision holds that its con-

struction follows from the unambiguous terms of the statute and thus

leaves no room for agency discretion.” 545 U.S. at 982.

13

In Duran Gonzales, we considered a conflict between our interpreta-

tion of certain provisions of IIRIRA in Perez-Gonzalez v. Ashcroft, 379

F.3d 783 (9th Cir. 2004), and the BIA’s subsequent interpretation of the

same provisions in In re Torres-Garcia, 23 I. & N. Dec. 866 (BIA 2006).

Relying on Brand X, 545 at 980-82, we determined that so long as Perez-

Gonzalez was “based, at least in part, on ambiguity in the applicable stat-

utes,” our deference to the BIA’s interpretation was required. Duran Gon-

zales, 508 F.3d at 1236. After ascertaining that, “despite some language

to the contrary, Perez-Gonzalez was based on a finding of statutory

ambiguity that left room for agency discretion,” id. at 1237, we concluded

we were not bound by Perez-Gonzalez but “must defer to In re Torres-

Garcia if its interpretation of the governing statute is reasonable,” id. at

1239 (emphasis added).

6210 ESCOBAR v. HOLDER

The BIA’s reliance on Brand X and Duran Gonzales in

Matter of Ramirez-Vargas is misplaced. Most notably, in

Brand X itself, in reaching the prior decision at issue, AT&T

Corp. v. Portland, 216 F.3d 871 (9th Cir. 2000), our court had

not even considered an agency interpretation of the Commu-

nications Act, nor had we applied Chevron deference when

we interpreted the statute. See id. at 876 (“We note at the out-

set that the FCC has declined, both in its regulatory capacity

and as amicus curiae, to address the issue before us. Thus, we

are not presented with a case involving potential deference to

an administrative agency’s statutory construction pursuant to

the Chevron doctrine.”). Indeed, the FCC was not even a

party to Portland. See Brand X, 545 U.S. at 980. Accordingly,

when we authored the decision that the Supreme Court

reversed in Brand X, we did not employ a deferential review

of an agency interpretation at Chevron’s second step. See

Brand X Internet Servs. v. FCC, 345 F.3d 1120, 1130-32 (9th

Cir. 2003), rev’d, 545 U.S. 967 (2005). Rather, as the

Supreme Court observed, we “declined to apply Chevron

because [we] thought the Commission’s interpretation of the

Communications Act [was] foreclosed by the conflicting con-

struction of the Act [we] had adopted in Portland.” Brand X,

545 U.S. at 982.

Similarly, in Duran Gonzales, we observed that our previ-

ous decision in Perez-Gonzalez had “clearly relied on the

agency regulations to reconcile the inadmissibility provision

with the special adjustment provision.” 508 F.3d at 1238.

Thus, Perez-Gonzalez “did not ‘foreclose[ ] the agency’s

interpretation’ of the statutory scheme, but rather relied on the

regulations to both reject an informal agency interpretation of

the inadmissibility provision and reach [its] holding.” Id. at

1238 (quoting Brand X, 545 U.S. at 983). Accordingly, our

conclusion in Duran Gonzales that the BIA’s new interpreta-

tion of these regulations was “clearly reasonable” did not

directly contravene the Perez-Gonzalez analysis, which was

premised on a different interpretation of the same underlying

regulations. See id. at 1242; see also Perez-Gonzalez, 379

ESCOBAR v. HOLDER 6211

F.3d at 794 (“In the absence of a more complete agency elab-

oration of how its interpretation of § 212(a)(9) can be recon-

ciled with its own regulations, we must defer to the

regulations rather than to the informal guidance memoran-

dum.”).

[14] In sum, neither Brand X nor Duran Gonzales suggests

that an agency may resurrect a statutory interpretation that a

circuit court has foreclosed by rejecting it as unreasonable at

Chevron’s second step.14 As both Brand X and Duran Gon-

zales acknowledged, under Chevron, an agency’s interpreta-

tion of a statute it is charged with administering must be

reasonable. See Brand X, 545 U.S. at 997-1000; Duran Gon-

zales, 508 F.3d at 1241-42. In contrast to the prior decisions

at issue in Brand X and Duran Gonzales, the Cuevas-Gaspar

panel considered and rejected the precise interpretation of sec-

tion 240A(a) that the BIA resurrected in In re Escobar and

extended in Matter of Ramirez-Vargas. Our assessment of In

re Escobar therefore remains bound by the ongoing validity

of our holding in Cuevas-Gaspar.

14

Indeed, the Brand X majority’s reasoning confirms this conclusion.

After pronouncing its general holding that a “court’s prior judicial con-

struction of a statute trumps an agency construction otherwise entitled to

Chevron deference only if the prior court decision . . . follows from the

unambiguous terms of the statute,” 545 U.S. at 982, the Court observed:

A contrary rule would produce anomalous results. It would mean

that whether an agency’s interpretation of an ambiguous statute

is entitled to Chevron deference would turn on the order in which

the interpretations issue: If the court’s construction came first, its

construction would prevail, whereas if the agency’s came first,

the agency’s construction would command Chevron deference.

Id. at 983. Thus, because the BIA interpreted section 240A(a) before we

did, and this interpretation has already received Chevron deference, the

underlying concerns motivating Brand X are simply inapposite.

6212 ESCOBAR v. HOLDER

B. The Motion to Reopen

[15] Escobar concedes that her motion to reopen was

untimely. Absent exceptional circumstances, the untimeliness

of a motion to reopen bars consideration of the merits,

because we lack jurisdiction to consider whether the BIA

properly refused to reopen a case sua sponte. Toufighi v.

Mukasey, 538 F.3d 988, 993 (9th Cir. 2008). Escobar has

failed to demonstrate exceptional circumstances.

Escobar argues that we should follow Cardoso-Tlaseca in

reaching the merits of her motion. In Cardoso-Tlaseca, we

granted and remanded a petition for review in which the peti-

tioner faced removal on the basis of a conviction that had

been subsequently vacated and expunged. See 460 F.3d at

1104-05. The BIA had denied the petitioner’s motion to

reopen on the ground that it lacked jurisdiction under 8 C.F.R.

§ 1003.2(d) because the petitioner had departed from the

United States. Id. at 1105. Because the subsequently vacated

“conviction was a ‘key part’ of the government’s case” for

removal, id. at 1107, we remanded to the BIA “for a determi-

nation whether [the] original conviction was vacated on the

merits or because of immigration consequences,” id. at 1108.

Cardoso-Tlaseca is inapposite. Escobar’s new legal theory

is not comparable to a vacated conviction, particularly

because this theory did not arise from a change in law or

newly discovered evidence. On the contrary, the argument

was available from the outset of Escobar’s removal proceed-

ings. Moreover, the BIA denied Cardoso-Tlaseca’s motion to

reopen because he had left the United States, not because his

petition was untimely.

[16] Escobar also has not satisfied any of the well-

established grounds warranting equitable tolling of the dead-

line to file a motion to reopen. See Iturribarria v. INS, 321

F.3d 889, 897 (9th Cir. 2003) (“This court . . . recognizes

equitable tolling of deadlines and numerical limits on motions

ESCOBAR v. HOLDER 6213

to reopen or reconsider during periods when a petitioner is

prevented from filing because of deception, fraud, or error, as

long as the petitioner acts with due diligence in discovering

the deception, fraud, or error.”). Escobar can point to no “de-

ception, fraud, or error” that delayed her motion to reopen.

See id. Accordingly, the BIA did not abuse its discretion in

denying this motion as untimely.

CONCLUSION

Viewing section 240A within the context of the INA,

Cuevas-Gaspar compels the conclusion that the BIA’s inter-

pretation of section 240A(a)(1) is unreasonable. It is perhaps

worth noting that, in so holding, we do not guarantee that

Escobar and others in her situation may remain in the United

States. On the contrary, we merely grant access to the possi-

bility of cancellation of removal, leaving the ultimate determi-

nation to the sound discretion of the Attorney General.

We further conclude that the BIA did not abuse its discre-

tion in denying Escobar’s motion to reopen as untimely.

PETITION No. 07-72843 GRANTED and REMANDED

for further proceedings consistent with this opinion;

PETITION No. 08-71777 DISMISSED.

GRABER, Circuit Judge, concurring:

I concur fully in Judge Wardlaw’s opinion. I write sepa-

rately to express my concern with both the BIA’s current rule

and our holding in Cuevas-Gaspar v. Gonzales, 430 F.3d

1013 (9th Cir. 2005).

To qualify for cancellation of removal, a person must have

had permanent resident status for five years, 8 U.S.C.

§ 1229b(a)(1), and must have had continuous residence under

6214 ESCOBAR v. HOLDER

“any” legal immigration status for seven years, id.

§ 1229b(a)(2). The Board of Immigration Appeals (“BIA”)

has interpreted those requirements strictly: A parent’s legal

status cannot be imputed to a child.

The BIA’s rule is undeniably harsh. Its effect is to remove

children who have lived in the United States for at least seven

years and whose parents have had permanent resident status

for at least five years. Moreover, the children may have

arrived here at a very young age and have no ties to the desig-

nated country of removal. The children may not speak the lan-

guage, know anyone there, or have any connection other than

the country name on their birth certificates. The BIA’s rule

faults these children because their parents, for whatever rea-

son, chose not to seek legal status for the children at the same

time that they themselves sought legal status.

In Cuevas-Gaspar, 430 F.3d at 1021-29, we declined to

afford the BIA’s interpretation of the seven-year continuous

residence requirement deference under the second step of

Chevron analysis because, in our view, the BIA’s interpreta-

tion was unreasonable. Here, the BIA held that it would not

“extend” our holding in Cuevas-Gaspar to the five-year per-

manent residence requirement. In re Escobar, 24 I. & N. Dec.

231, 235 (B.I.A. 2007). But, for present purposes, there is no

relevant distinction between a parent’s status for the five-year

permanent residence requirement and a parent’s status for the

seven-year continuous residence requirement. For the reasons

expressed in the opinion, Cuevas-Gaspar controls and we

must conclude that the BIA’s interpretation is unreasonable.

Despite the harshness of the BIA’s current rule, and despite

the equal or greater reasonableness of a less harsh rule, I think

that, as a matter of statutory interpretation and Chevron defer-

ence, Cuevas-Gaspar was wrongly decided. If not for Cuevas-

Gaspar, I would conclude that, under the demanding standard

of Chevron deference, the BIA’s interpretation is reasonable.

I am not alone. See Cuevas-Gaspar, 430 F.3d at 1031-32

ESCOBAR v. HOLDER 6215

(Fernandez, J., dissenting); Augustin v. Attorney Gen., 520

F.3d 264, 269-72 (3d Cir. 2008) (disagreeing with Cuevas-

Gaspar and holding to the contrary). Judge Fernandez’ dis-

sent in Cuevas-Gaspar and the Third Circuit’s unanimous

decision in Augustin aptly explain why the BIA’s interpreta-

tion is reasonable when considering Chevron deference. That

conclusion is particularly warranted because “judicial defer-

ence to the Executive Branch is especially appropriate in the

immigration context.” INS v. Aguirre-Aguirre, 526 U.S. 415,

425 (1999); see also Chen v. Mukasey, 524 F.3d 1028, 1033

(9th Cir. 2008) (“Deference is especially appropriate in the

context of immigration law, where national uniformity is par-

amount.” (internal quotation marks omitted)).1

Were the question not already decided by Cuevas-Gaspar,

then, I would feel constrained as a judge to defer to the BIA’s

interpretation of the statute. Unless and until the BIA reverses

course or Congress fills the gap in the immigration laws, we

must defer to the agency’s expertise—my personal misgivings

notwithstanding.

1

The BIA has stated that it “will . . . not follow [Cuevas-Gaspar] in

cases arising outside the jurisdiction of the Ninth Circuit.” In re Escobar,

24 I. & N. Dec. at 235. Thus, its rule is uniform everywhere except the

Ninth Circuit.