Escobar v. Holder

• Decision Date: 27 May 2009
• Docket Number: No. 08-71777.,No. 07-72843.,07-72843.,08-71777.
• Citation: 567 F.3d 466
• Parties: Kattia Guadalupe ESCOBAR, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

567 F.3d 466

Kattia Guadalupe ESCOBAR, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.

No. 07-72843.

No. 08-71777.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 8, 2008.

Filed May 27, 2009.

Christopher J. Stender, Stender & Lappin, PC, San Diego, CA, for the petitioner.

Carol Federighi, Office of Immigration Litigation, U.S. Department of Justice, Civil Division, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A075-504-052.

Before: JEROME FARRIS, SUSAN P. GRABER,^* and KIM McLANE WARDLAW, Circuit Judges.

Opinion by Judge WARDLAW; Concurrence by Judge GRABER.

WARDLAW, Circuit Judge:

We must decide whether our decision in Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir.2005), compels the conclusion 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 satisfying the five-year permanent residence requirement for cancellation 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

Kattia Guadalupe Escobar ("Escobar") is a native and citizen of El Salvador. She came to the United States and settled in California with her mother in the early 1980s, when she was approximately five years old. Her mother adjusted her status to lawful permanent residence on March 3, 1992, when Escobar was thirteen. Escobar herself attained lawful permanent resident status on February 15, 2003. She has two U.S. citizen children.

On August 12, 2006, after Escobar attempted to drive an undocumented Mexican child across the border from Tijuana,¹ the Department of Homeland Security ("DHS") issued a Notice to Appear charging Escobar with removability under section 212(a)(6)(E)(i) of the INA, 8 U.S.C. § 1182(a)(6)(E)(i) ("Any alien who at any time knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law is inadmissible.").

In removal proceedings, the immigration judge ("IJ") found Escobar removable under section 212(a)(6)(E)(i) and held that she was ineligible for cancellation of removal as a lawful permanent resident. 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 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 status, and (3) has not been convicted of any aggravated felony." Under Cuevas-Gaspar, the seven-year continuous residence requirement in subsection (a)(2) was satisfied for Escobar by imputing the 1992 admission of her mother for permanent residence. See 430 F.3d at 1023-24. However, the IJ determined that Escobar's mother's status could not be imputed to satisfy the five-year permanent residence requirement in subsection (a)(1).

Escobar appealed to the Board of Immigration Appeals ("BIA"), raising only the issue of her eligibility for cancellation of removal. In a published decision, the BIA noted its disagreement with Cuevas-Gaspar, declined to apply Cuevas-Gaspar's holding to allow imputation for the five-year permanent residence requirement, and dismissed Escobar's appeal. In re Escobar, 24 I. & N. Dec. 231 (BIA 2007). Escobar filed a timely petition for review on July 19, 2007.

More than five months later, Escobar submitted a motion to reopen to the BIA, raising the new argument that it was legally impossible to have "encouraged, induced, assisted, abetted, or aided" a minor, age eight, "to enter or to try to enter the United States" illegally, because a child of that age lacked the capacity to intend "to enter." 8 U.S.C. § 1182(a)(6)(E)(i). The BIA denied her motion in a one-judge per curiam decision on April 4, 2008, as untimely. The BIA also stated that, even if it were "to reopen proceedings sua sponte, the respondent has failed to establish a likelihood of success on the merits of her claim." Escobar timely appealed the denial of her motion to reopen, and we consolidated the petitions for review. See 8 U.S.C. § 1252(b)(6).

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 omitted). 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. Escobar's Eligibility for Cancellation of Removal

1. Imputation of Status, Intent, and State of Mind to Unemancipated 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 parent's unemancipated minor child in many areas of immigration 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 knowledge of ineligibility for admission to that parent's minor children 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 subject to the parent's custody and control.") (citing Matter of Winkens, 15 I. & N. Dec. 451 (BIA 1975)). As we explain in a companion case, also filed today, "[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, 567 F.3d 451, 463-64 (9th Cir.2009).² On several occasions, we have confronted situations in which a parent would qualify for relief under section 240A(a) or its predecessor, section 212(c),³ while a child who at all times had been in the physical custody of that parent would not. In recognition of the fundamental concerns motivating this form of discretionary relief, we have consistently imputed a parent's satisfaction of the provision's status requirements to the unemancipated minor children in that parent's custody.

a. Section 212(c) and Lepe-Guitron

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 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 differences" between the applicant in 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. On the contrary, we found a "number of persuasive reasons 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 government 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 relationship between permanent resident parents and their children" lent strength to this analysis.⁴ Id.

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 cannot determine their own domicile, id. at 1025-26. We therefore 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...