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Matter of Diana MONTOYA-SILVA, Respondent
Decided May 9, 2013
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
A parent’s lawful permanent resident status and residence in the United States cannot be
imputed to an unemancipated minor for purposes of establishing the child’s eligibility for
cancellation of removal under section 240A(a) of the Immigration and Nationality Act,
8 U.S.C. § 1229b(a) (2006). Matter of Escobar, 24 I&N Dec. 231 (BIA 2007); and Matter
of Ramirez-Vargas, 24 I&N Dec. 599 (BIA 2008), reaffirmed.
FOR RESPONDENT: Dario Aguirre, Esquire, Denver, Colorado
FOR THE DEPARTMENT OF HOMELAND SECURITY: Julia Cline, Senior Attorney
BEFORE: Board Panel: GUENDELSBERGER and ADKINS-BLANCH, Board
Members; MANUEL, Temporary Board Member.
MANUEL, Temporary Board Member:
In a decision dated June 27, 2011, an Immigration Judge found the
respondent removable under section 212(a)(6)(E)(i) of the Immigration and
Nationality Act, 8 U.S.C. § 1182(a)(6)(E)(i) (2006), for attempting to
smuggle an alien into the country. He also found her statutorily ineligible
for cancellation of removal under section 240A(a) of the Act, 8 U.S.C.
§ 1229b(a) (2006), and ordered her removed from the United States. The
respondent has appealed from that decision. The appeal will be dismissed.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Mexico who was admitted to
the United States on or about August 22, 2000, as a lawful permanent
resident. On July 8, 2005, she was stopped at the Calexico East Port of
Entry for attempting to smuggle an alien into the United States. She was
placed in these removal proceedings by the issuance of a notice to appear
dated July 9, 2005.
At a hearing before the Immigration Judge, the respondent conceded
removability and applied for cancellation of removal for permanent
residents under section 240A(a) of the Act. The Immigration Judge
determined that because the respondent’s continuous residence in the
United States was terminated pursuant to section 240A(d)(1) when theCite as 26 I&N Dec. 123 (BIA 2013) Interim Decision #3781
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notice to appear was served in July 2005, she did not have the required
7 years of continuous residence since the time of her admission in August
2000. He therefore found her statutorily ineligible for cancellation of
removal under section 240A(a)(2) of the Act and, in a decision dated July 7,
2006, denied her application.
The respondent appealed, and we affirmed the Immigration Judge’s
decision in an order dated August 31, 2007. She then filed a petition for
review, and on April 8, 2009, the United States Court of Appeals for the
Ninth Circuit granted her unopposed motion to remand to the Board.
In a decision dated December 21, 2009, we addressed the respondent’s
due process arguments regarding the evidence presented in support of the
charge of inadmissibility and found that they were foreclosed by the Ninth
Circuit’s decision in Samayoa-Martinez v. Mukasey, 558 F.3d 897 (9th Cir.
2009).1 We also noted that during the pendency of the appeal, the Ninth
Circuit had issued its decision in Mercado-Zazueta v. Holder, 580 F.3d
1102 (9th Cir. 2009), which involved the imputation of a parent’s lawful
permanent resident status or continuous residence in the United States to
a minor child for purposes of establishing eligibility for cancellation
of removal. Finding that this decision was relevant to the question of
the respondent’s eligibility for relief, we remanded the record to the
Immigration Judge to reconsider his decision in light of the intervening
Ninth Circuit precedent.
On remand, the Immigration Judge considered the Ninth Circuit’s
decision in Mercado-Zazueta but distinguished that case, finding that the
imputation of the parent’s lawful permanent resident status or continuous
residence in the United States to an unemancipated minor was limited to
those situations where the child was residing in the United States with the
parent. He concluded that the respondent, who resided in Mexico before
her August 2000 admission as a lawful permanent resident, could not have
her mother’s residence in the United States prior to that date imputed to her.
The Immigration Judge therefore again found the respondent to be
statutorily ineligible for cancellation of removal under section 240A(a) of
the Act in his June 27, 2011, decision. 2
1 Although the respondent indicated on her notice of appeal from the Immigration
Judge’s June 27, 2011, decision that she intended to challenge his inadmissibility finding,
she has conceded in her brief that Samayoa-Martinez v. Mukasey is controlling.
2 The Immigration Judge also addressed the respondent’s eligibility for cancellation of
removal for aliens who are not lawful permanent residents under section 240A(b) of the
Act as a result of an inadvertent error in the statutory designation in our remand order.
However, the respondent has only applied for cancellation of removal for lawful
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II. ISSUE
The issue on appeal is whether a parent’s period of residence in the
United States can be imputed to an unemancipated minor for purposes of
demonstrating the 7 years of continuous residence required to establish the
child’s eligibility for cancellation of removal under section 240A(a)(2) of
the Act.
III. ANALYSIS
In order to establish statutory eligibility for cancellation of removal
under section 240A(a) of the Act, an alien must demonstrate that he or she
has resided in the United States continuously for a period of 7 years after
having been admitted in any status. Section 240A(a)(2) of the Act. The
respondent argues that in determining her period of continuous residence in
this country, the time that her mother was residing in the United States prior
to the respondent’s August 2000 admission should be imputed to her.
In Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir. 2005), the Ninth
Circuit held that a parent’s lawful admission and residence could be
imputed to an unemancipated minor 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 Act. We declined to extend the
Ninth Circuit’s holding regarding imputation in the context of the residence
requirement in section 240A(a)(2) to the calculation of the 5 years of lawful
permanent resident status required under section 240A(a)(1) in Matter
of Escobar, 24 I&N Dec. 231 (BIA 2007), where we held that a parent’s
lawful permanent resident status could not be imputed to a child.
Subsequently, in Matter of Ramirez-Vargas, 24 I&N Dec. 599 (BIA 2008),
we followed Matter of Escobar in finding, contrary to the Ninth Circuit,
that a parent’s residence in the United States could not be imputed to a
child in calculating the required 7 years of continuous residence. We noted
there that the court did not have the benefit of our “extensive rationale”
when it issued Cuevas-Gaspar. Id. at 600. However, in Mercado-Zazueta
the Ninth Circuit rejected our reasoning in Matter of Escobar.
Subsequent to the Immigration Judge’s decision, and while the
respondent’s appeal has been pending, the United States Supreme Court
addressed the issue of “imputation” and specifically abrogated the Ninth
Circuit’s decisions in both Cuevas-Gaspar and Mercado-Zazueta. Holder
v. Martinez Gutierrez, 132 S. Ct. 2011 (2012). In that case, the Court found
that the Board reasonably construed the statute addressing eligibility for
cancellation of removal to require that each alien must satisfy the statutory
requirements regarding lawful permanent resident status and continuous
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status or residence to a child. The Court found that the Board’s permissible
construction was entitled to deference from the Court under Chevron,
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837,
843–44 (1984) (holding that the courts should uphold an agency’s
interpretation of a statute it administers if it is based on a reasonable
construction of the statute). Id. at 2017, 2021. Following the Supreme
Court’s decision, the Ninth Circuit recognized that “Mercado-Zazueta is no
longer valid precedent on the issue of imputation” under section 240A of
the Act. Mojica v. Holder, 689 F.3d 1133, 1134 (9th Cir. 2012) (per curiam)
(citing Sawyers v. Holder, 684 F.3d 911 (9th Cir. 2012) (per curiam)).
In view of the Supreme Court’s rejection of the imputation doctrine as
applied to an alien seeking to establish eligibility for cancellation of
removal, we reaffirm our decisions in Matter of Escobar and Matter of
Ramirez-Vargas. Applying the reasoning of Ramirez-Vargas to this case,
we conclude that the respondent has not demonstrated that she acquired
7 years of continuous residence after having been admitted in any status,
as required by section 240A(a)(2) of the Act. She is therefore statutorily
ineligible for cancellation of removal. Accordingly, the respondent’s
appeal will be dismissed.
ORDER: The appeal is dismissed.