RAMIREZ-VARGAS

Cite as 24 I&N Dec. 599 (BIA 2008) Interim Decision #3619

Matter of Javier RAMIREZ-VARGAS, Respondent

File A074 223 635 - Eloy

Decided as amended August 20, 20081

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

A parent’s period of residence in the United States cannot be imputed to a child for

purposes of calculating the 7 years of continuous residence required to establish eligibility

for cancellation of removal under section 240A(a)(2) of the Immigration and Nationality Act,

8 U.S.C. § 1229b(a)(2) (2006).

FOR RESPONDENT: Michael Franquinha, Esquire, Phoenix, Arizona

FOR THE DEPARTMENT OF HOMELAND SECURITY: Heather A. Cornwell, Assistant

Chief Counsel

BEFORE: Board Panel: COLE, PAULEY, and HESS, Board Members.

PAULEY, Board Member:

In a decision dated February 26, 2008, an Immigration Judge found the

respondent, a native and citizen of Mexico and lawful permanent resident of

the United States, removable as an alien convicted of a controlled substance

violation but granted his application for cancellation of removal pursuant to

section 240A(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a)

(2006). The Department of Homeland Security (“DHS”) has timely appealed

the Immigration Judge’s grant of cancellation of removal, arguing that he erred

in finding the respondent to be statutorily eligible for that relief. The appeal

will be sustained.

Section 240A(a) of the Act provides in relevant part that the Attorney

General may cancel removal if the alien: (1) has been an alien lawfully

admitted for permanent residence for not less than 5 years; (2) has resided in

the United States continuously for 7 years after having been admitted in any

1

On our own motion, we amend the June 30, 2008, order in this case. The amended order

makes editorial changes consistent with our designation of the case as a precedent.

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Cite as 24 I&N Dec. 599 (BIA 2008) Interim Decision #3619

status; and (3) has not been convicted of any aggravated felony.2 There is no

dispute that the respondent became a lawful permanent resident on March 14,

1997, and that his first offense of possession of methamphetamine, which

was committed on December 10, 2003, terminated his continuous residence

short of the required 7 years. The only issue on appeal is whether the

Immigration Judge correctly determined that the period during which the

respondent resided as an unemancipated minor child with his lawful permanent

resident father could be imputed to the respondent in order to satisfy the 7-year

residence requirement for cancellation of removal under section 240A(a)(2)

of the Act. We conclude that it cannot be so imputed and that the Immigration

Judge’s finding in that regard was erroneous.

In his decision, the Immigration Judge agreed with the respondent’s pretrial

argument that, pursuant to Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th

Cir. 2005), his father’s period of residence as a lawful permanent resident

could be attributed to him for purposes of determining the 7-year continuous

residence requirement. In Cuevas-Gaspar the Ninth Circuit interpreted

section 240A(a)(2) of the Act, which it found to be silent on the issue of

imputing lawful permanent residence. Id. at 1022.

Subsequently, we published Matter of Escobar, 24 I&N Dec. 231, 233 (BIA

2007), in which we rejected the Ninth Circuit’s interpretation and found that

the lawful permanent residence of a parent could not be imputed to a child in

determining whether the child acquired the necessary years of residence. We

concluded that while Cuevas-Gaspar dealt only with section 240A(a)(2) of the

Act, a parent’s lawful permanent resident status also could not be imputed to

a child under section 240A(a)(1). Id. at 232-34. In our decision, we provided

a full explanation of our reasons for not imputing the lawful admission of a

parent to a child who was later admitted as a lawful permanent resident. This

extensive rationale was not before the Ninth Circuit when it ruled in

Cuevas-Gaspar.

Recently, the Ninth Circuit held in similar circumstances that it must give

“Chevron deference” to an agency’s statutory interpretation that conflicts with

its own earlier interpretation. Gonzales v. Department of Homeland Security,

508 F.3d 1227, 1242 (9th Cir. 2007); see also Chevron U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837, 843 (1984) (stating that

where a statute is silent or ambiguous on a specific issue, an agency’s

interpretation of it should be given deference if it is based on a permissible

construction of the statute). In the prior Ninth Circuit decision at issue in

2

The term “lawfully admitted for permanent residence” means “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.” Section

101(a)(20) of the Act, 8 U.S.C. § 1101(a)(20) (2006).

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Cite as 24 I&N Dec. 599 (BIA 2008) Interim Decision #3619

Gonzales, the court had found the interpretation of an ambiguous provision at

issue in that case to be unreasonable. Perez-Gonzales v. Ashcroft, 379 F.3d

783, 788-89 (9th Cir. 2004). The court nevertheless found that it was

required to defer to the subsequent interpretation of the agency. Gonzales

v. Department of Homeland Security, supra, at 1242. We therefore consider

ourselves bound by our more recent precedent in Matter of Escobar, supra.

See generally Nat’l Cable & Telecomms. Ass’n v. Brand X lnternet Servs.,

545 U.S. 967 (2005); Chevron U.S.A., Inc. v. Natural Resources Defense

Council, Inc., supra.

We conclude that the lawful permanent residence of the respondent’s father

cannot be imputed to the respondent. Therefore, the respondent cannot satisfy

the 7-year continuous residence requirement in section 240A(a)(2) of the Act

and is ineligible for cancellation of removal. Accordingly, the DHS’s appeal

will be sustained and the respondent will be ordered removed.

ORDER: The appeal of the Department of Homeland Security is sustained.

FURTHER ORDER: The decision of the Immigration Judge granting

cancellation of removal is vacated.

FURTHER ORDER: The respondent is ordered removed from the

United States to Mexico.

601