Mercado-Zazueta v. Holder

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE LUIS MERCADO-ZAZUETA, 

Petitioner, No. 07-71428

v.

 Agency No.

A 75-504-958

ERIC H. HOLDER JR., Attorney

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 September 8, 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.

12595

MERCADO-ZAZUETA v. HOLDER 12599

COUNSEL

Randy J. Tunac, Allen & Tunac, PLLC, Phoenix, Arizona, for

the petitioner.

Charles E. Canter, 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

Jose Luis Mercado-Zazueta (“Mercado”), a native and citi-

zen of Mexico, entered the United States as a visitor in 1992,

12600 MERCADO-ZAZUETA v. HOLDER

at the age of seven. With the exception of a brief 2005 vaca-

tion, Mercado has remained in the country ever since. In

1992, his mother married Ramon Mercado Cuevas

(“Ramon”), who had been a lawful permanent resident of the

United States since 1983. Ramon legally adopted Mercado in

1998, when he was thirteen years old. Mercado obtained inde-

pendent lawful permanent resident status in 2002, at the age

of seventeen, and has three siblings: a U.S. citizen brother, a

U.S. citizen sister, and a lawful permanent resident sister.

In 2006, Mercado pled guilty to one count of aggravated

assault in the Superior Court of Arizona. See Ariz. Rev. Stat.

§ 13-1204. The United States Department of Homeland

Security (“DHS”) initiated removal proceedings against him

shortly afterward. Mercado conceded removability under sec-

tion 237 of the INA, 8 U.S.C. § 1227(a)(2)(A)(i)(I), as an

alien “convicted of a crime involving moral turpitude commit-

ted within five years . . . after the date of admission,” but

applied for cancellation of removal under INA § 240(a), 8

U.S.C. § 1229b(a).1 The immigration judge pretermitted the

application, finding Mercado ineligible for cancellation and

ordering his removal to Mexico.

Mercado timely appealed to the Board of Immigration

Appeals (“BIA”). In an unpublished decision, the BIA

declined to apply Cuevas-Gaspar to allow imputation for the

five-year permanent residence requirement, and dismissed

Mercado’s appeal. In re Mercado-Zazueta, A 75-504-958,

2007 WL 1195899 (BIA Mar. 29, 2007). Mercado filed a

timely petition for review on April 13, 2007.

1

Title 8 U.S.C. § 1229b(a) provides for cancellation of removal for a

permanent resident who “(1) has been an alien lawfully admitted for per-

manent residence for not less than 5 years, (2) has resided in the United

States continuously for 7 years after having been admitted in any status,

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

MERCADO-ZAZUETA v. HOLDER 12601

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

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. Mercado’s Eligibility for Cancellation of Removal

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

mancipated Minor Children

“[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

12602 MERCADO-ZAZUETA v. HOLDER

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

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

recently explained, “[w]e have allowed imputation precisely

because the minor either was legally incapable 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, 2009 WL 1813469, at *9 (9th Cir.

June 26, 2009).2 On several occasions, we have confronted

situations in which a parent would qualify for relief under sec-

tion 240A(a) or its predecessor, section 212(c),3 while a child

who at all times had been in the physical custody of that par-

ent would not. In recognition of the fundamental concerns

motivating this form of discretionary relief, we have consis-

tently imputed a parent’s satisfaction of the provision’s status

requirements to the unemancipated minor children in that par-

ent’s custody.

a. Section 212(c) and Lepe-Guitron

[1] 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

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, 2009 WL 1813469, at *6-12. In

declining to impute physical presence, we stressed that “the definition of

‘physical presence’ does not require a specific status, intent, or state of

mind,” id. at *10 (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, 2009 WL

1813469, at *9-11.

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, § 304(b), 110 Stat. 3009-597 (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 also

INS v. St. Cyr, 533 U.S. 289, 297 (2001).

MERCADO-ZAZUETA v. HOLDER 12603

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 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 resident status . . . many

years after his parents achieved it,” we concluded that

Castillo-Felix did not foreclose the possibility of imputation.

Id. On the contrary, we found a “number of persuasive rea-

sons to hold that a child’s ‘lawful unrelinquished domicile’

under section 212(c) is that of his or her parents.” 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 relation between permanent resident par-

ents 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

12604 MERCADO-ZAZUETA v. HOLDER

Second, Congress’s use of the term “domicile” reinforced

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 can-

not determine their own domicile, id. at 1025-26. We there-

fore 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

[2] We first considered the possibility of imputation under

section 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.

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”).

MERCADO-ZAZUETA v. HOLDER 12605

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-

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-

12606 MERCADO-ZAZUETA v. HOLDER

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-

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, 152-54 (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

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.

MERCADO-ZAZUETA v. HOLDER 12607

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-

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

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.

12608 MERCADO-ZAZUETA v. HOLDER

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

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 Mercado-Zazueta

[6] In denying Mercado’s direct appeal in an unpublished

disposition, the BIA declined to apply our holding in Cuevas-

Gaspar to the five-year residence requirement in section

240A(a)(1). In re Mercado-Zazueta, 2007 WL 1195899. In a

2007 published opinion, the BIA also expressed its disagree-

ment with the reasoning of Cuevas-Gaspar. See In re Esco-

bar, 24 I. & N. Dec. 231, 233-35 (BIA 2007).8 However, the

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).

8

Because the BIA’s published, precedential decisions warrant greater

deference, and because the two decisions rely on the same reasoning to

MERCADO-ZAZUETA v. HOLDER 12609

holding, reasoning, and logic of Cuevas-Gaspar apply equally

to the resident status requirements of both section 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

[7] It is “well-established that Congress delegated to the

BIA the authority to promulgate rules, on behalf of the Attor-

ney 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 to find the BIA’s

interpretation of section 240A(a) unreasonable. See Cuevas-

Gaspar, 430 F.3d at 1021-29. Indeed, when scrutinized, the

BIA’s decision in In re Escobar, as well as its decision in In

re Mercado-Zazueta, cannot fairly be characterized as a

“new” interpretation of section 240A(a), but is rather the same

unreasonable interpretation we rejected in Cuevas-Gaspar.

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

nent Residence and the Question of Congressional

Intent

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

is controlling precedent for the imputation of “lawful perma-

reach their conclusions, we discuss both in our analysis, but focus primar-

ily on In re Escobar. See Marmolejo-Campos v. Holder, 558 F.3d 903,

909 (9th Cir. 2009) (en banc) (“[W]e have held that the Board’s preceden-

tial orders, which bind third parties, qualify for Chevron deference

because they are made with a lawmaking pretense. We have not accorded

Chevron deference to the Board’s unpublished decisions, however,

because they do not bind future parties.” (internal quotation marks and

citations omitted)).

12610 MERCADO-ZAZUETA v. HOLDER

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

24 I. & N. Dec. at 234. Further, although “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 Congress.” In re

Escobar, 24 I. & N. Dec. at 234; cf. In re Mercado-Zazueta,

2007 WL 1195899.

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 emphasis on

section 240A(a)(1)’s requirement of being “lawfully admit-

ted” is clearly misplaced. In re Escobar, 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 preclude imputation, see Cuevas-Gaspar, 430 F.3d at

1025-26, surely the change from “lawful unrelinquished

domicile” to “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 domicile requirement, Lepe-Guitron “necessar-

ily held that a parent’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 requirement in section 240A(a)(1) is distinct, the dis-

tinction is not relevant, and we again conclude that the change

in terminology is “not . . . so great as to be dispositive.” Id.

MERCADO-ZAZUETA v. HOLDER 12611

Second, because Mercado actually has been admitted for

permanent residence, it is beyond dispute that he has satisfied

the substantive and procedural requirements of admission for

permanent residence.9 He 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.

[9] Similarly, the BIA’s decision in In re Escobar is flawed

in two critical respects: The decision is factually inaccurate in

implying that Escobar had not satisfied the mandated statutory

and regulatory application process and the substantive eligi-

bility 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

cancellation of removal necessarily requires imputing in other

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

234 n.4. The BIA incorrectly asserts that “if imputation of a

parent’s lawful permanent residence would allow a minor

alien to fulfill the requirements for cancellation of removal,

the child would never have to become a lawful permanent res-

ident in his own right.” Id. at 235. This is simply not the case.

See also In re Mercado-Zazueta, 2007 WL 1195899 (“[I]f

imputation is all that is needed, why would an alien ever need

to be a lawful permanent resident in his own right? Moreover,

why would an alien ever need an admission or period of

United States residence or presence?”). The possibility of can-

cellation arises only when removal proceedings have been ini-

tiated. On the other hand, those who attain lawful permanent

resident status acquire many more benefits than the one iso-

lated avenue to relief from removal, including eligibility for

employment, the right to live permanently in the United

9

The petitioner in In re Escobar, Kattia Guadalupe Escobar

(“Escobar”), had also satisfied these requirements for admission. See 24

I. & N. Dec. at 231. We therefore do not consider the imputation of lawful

permanent resident status to an unemancipated minor who has never been

admitted for permanent residence.

12612 MERCADO-ZAZUETA v. HOLDER

States, the ability to vote in state and local elections that do

not require U.S. citizenship, the ability to travel freely within

and without the United States, and the ability to pursue U.S.

citizenship. Because imputing a parent’s status for purposes

of cancellation would convey none of these other significant

and desirable benefits, the BIA’s reasoning in In re Escobar

and In re Mercado-Zazueta, that imputation for cancellation

would obviate an immigrant’s desire for lawful permanent

resident status, misapprehends the nature of that status.

Finally, the BIA mistakenly asserts that allowing imputa-

tion 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.” In re Escobar, 24

I. & N. Dec. at 233. If section 240A(a)’s silence regarding

imputation suggests anything, it suggests that Congress acqui-

esced in the unanimous practice of the circuits to consider the

issue, all of which had found imputation appropriate under

section 212(c). Regardless, in light of the statutory scheme

and legislative history of section 240A(a), allowing imputa-

tion for both the five- and seven-year requirements would not

“essentially destroy the distinct tests mandated by Congress

when it amended the statute.” Id. at 234. On the contrary, 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 necessary to qualify for relief.” Id. (empha-

sis added). Therefore, unlike the “physical presence” at issue

in Ramos Barrios, which does not include “an element of sta-

tus, intent, or state of mind,” 2009 WL 1813469, at *9, the

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

equally amenable to imputation.

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

subsections 240A(a)(1) and (2) remain distinct, as all appli-

cants for cancellation of removal as permanent residents are

still required to demonstrate both five years spent as a lawful

MERCADO-ZAZUETA v. HOLDER 12613

permanent resident and seven years of residence after admis-

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

United States as the unemancipated minor children of lawful

permanent resident parents merely have an alternative mecha-

nism 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

requirement would not be contrary in any way to congressio-

nal intent.

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

Contexts

In In re Escobar, the BIA claimed 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 BIA identifies two reasons why this

distinction is relevant.

First, the BIA notes that imputing the abandonment of per-

manent resident status is consistent with the “longstanding

policy that a child cannot form the intent necessary to estab-

lish his or her own domicile.” Id. This observation lacks rele-

vance; it is a distinction without a difference. The argument

appears to be that the abandonment of permanent resident sta-

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.

12614 MERCADO-ZAZUETA v. HOLDER

tus 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 assertion that the status

of “admission” could not be imputed because, “unlike domi-

cile, which depends on intent or capacity, ‘admission’ does

not depend on either intent or capacity.” Id. Indeed, the BIA

attempted to recycle this argument in In re Mercado-Zazueta,

claiming that “unlike domicile, which depends on intent or

capacity, admission does not depend on either the intent or the

capacity of the minor, but rather on inspection and authoriza-

tion by an immigration officer.” 2007 WL 1195899. 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).

See 430 F.3d at 1025.

[11] Thus, while unemancipated minors may be technically

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 permanent resi-

dent status to minor children is appropriate, so far as cancella-

tion 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 independent

of his parents.” Ramos Barrios, 2009 WL 1813469, at *9.

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

both Escobar and Mercado satisfied the “attendant eligibility

requirements” to acquire permanent resident status. Moreover,

the fact that it may be more complicated to acquire permanent

MERCADO-ZAZUETA v. HOLDER 12615

resident status than to abandon it does not provide any indica-

tion as to whether imputation is more appropriate for one than

the other. If there is any reasonable conclusion to be drawn

from that fact, it is that the complications associated with

acquiring permanent resident status favor imputation, as

minor children are less equipped to deal with those complica-

tions on their own.

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, 558 F.3d at 914 (quoting

Morales-Izquierdo v. Gonzales, 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 obser-

vation that the BIA “repeatedly [has] held that a parent’s sta-

tus, intent, or state of mind is imputed to the parent’s

unemancipated minor child in many areas of immigration law,

including asylum, grounds of inadmissibility, and legal resi-

dency status.” 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 (alteration in

original) (quoting Chevron, 467 U.S. at 843).

12616 MERCADO-ZAZUETA v. HOLDER

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

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

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). Mercado has spent almost his whole life

within the United States. When Mercado was legally adopted

at the age of thirteen, he easily could have adjusted his own

status with the assistance of his parents. Not only is it absurd

to penalize Mercado for his parents’ failure to assist him with

the adjustment process, but it flies in the face of common

sense to conclude that a lawful permanent resident such as

Mercado, who has spent the vast majority of his 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)).12 Further, if Mercado had never attained

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.

12

As Mercado’s mother put it, in a letter submitted to DHS along with

Mercado’s application for cancellation of removal:

[Mercado] has been raised here since he was a little boy, always

attending school and trying to do everything that could help him

MERCADO-ZAZUETA v. HOLDER 12617

lawful permanent resident status, his eligibility for cancella-

tion of removal would have been governed by section

240A(b), under which he easily would have established that

he had been “physically present in the United States for a con-

tinuous period of not less than 10 years.” 8 U.S.C.

§ 1229b(b)(1)(A). Accordingly, we hold that, for purposes of

satisfying the five years of lawful permanent residence

required under INA section 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

be successful in this country. His social life, professional life,

personal life, everything about his life is based on this culture, on

the American way of living. He has always been very intelligent

and goal oriented striving to reach these goals. As soon as he

graduated high school he went to college while also having a job.

He almost attained his degree in Computer Aided Drafting since

he only needed one semester to get his Associates Degree. He is

a good boy, very noble and it saddens me to see him detained

with his goals lost and his future about to be taken away from

him. Even though he can be sent free and sent to another country,

his goals, his life, his home, his everything is HERE. Taking that

away from him is like taking away everything.

The fundamental motivating purpose behind section 240A(a), as illumi-

nated above, is to aid precisely those such as Mercado who have lawfully

built their entire lives in this country.

12618 MERCADO-ZAZUETA v. HOLDER

(2005) (“Brand X”),13 and our decision in Duran Gonzales v.

DHS, 508 F.3d 1227 (9th Cir. 2007),14 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 599-601. We

disagree.

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

when we authored the decision that the Supreme Court

13

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.

14

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 U.S. at 980-82, we determined that so long as

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

statutes,” our deference to the BIA’s interpretation was required. Duran

Gonzales, 508 F.3d at 1236. After ascertaining that, “despite some lan-

guage 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).

MERCADO-ZAZUETA v. HOLDER 12619

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.

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

sion in Duran Gonzales that the BIA’s new interpretation 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 regula-

tions. See id. at 1242; see also Perez-Gonzalez, 379 F.3d at

794 (“In the absence of a more complete agency elaboration

of how its interpretation of § 212(a)(9) can be reconciled with

its own regulations, we must defer to the regulations rather

than to the informal guidance memorandum.”).

[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.15 As both Brand X and Duran Gon-

15

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:

12620 MERCADO-ZAZUETA v. HOLDER

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

tion of a statute it is charged with administering must be rea-

sonable. See Brand X, 545 U.S. at 997-1000; Duran Gonzales,

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 section

240A(a) that the BIA precedentially resurrected in In re Esco-

bar and extended in Matter of Ramirez-Vargas. Our review of

the BIA’s published decision in In re Escobar, as well as its

unpublished decision in In re Mercado-Zazueta, remains

bound by the ongoing validity of our holding in Cuevas-

Gaspar.

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

Mercado and others in his 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.

PETITION GRANTED and REMANDED for further

proceedings consistent with this opinion.

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

concerns underlying Brand X are simply inapposite.

MERCADO-ZAZUETA v. HOLDER 12621

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

“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. In In re Escobar, 24 I. & N. Dec. 231,

235 (B.I.A. 2007), the BIA held that it would not “extend”

our holding in Cuevas-Gaspar to the five-year permanent res-

idence requirement. But, for present purposes, there is no rele-

vant 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

12622 MERCADO-ZAZUETA v. HOLDER

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

(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.