RAMIREZ-VARGAS, 24 I&N Dec. 599 (BIA 2008)

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