Escobar v. Holder

GRABER, Circuit Judge,

concurring:

I concur fully in Judge Wardlaw’s opinion. I write separately 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)(l), 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 designated country of removal. The children may not speak the language, 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 reason, 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 interpretation was unreasonable. Here, the BIA held that it would not “extend” our holding in Cuevas-Gaspar to the five-year permanent 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 deference, 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’ dissent in Cuevas-Gaspar and the Third Circuit’s unanimous decision in Augustin aptly explain why the BIA’s interpretation is reasonable when considering Chevron deference. That conclusion is particularly warranted because “judicial deference to the Executive Branch is especially appropriate in the immigration context.” INS v. Aguirre-Aguirre, 526 U.S. 415, 425 , 119 *482 S.Ct. 1439 , 143 L.Ed.2d 590 (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 paramount.” (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.

. 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.