In re Escobar
| Decision Date | 11 July 2007 |
| Docket Number | File A75 504 052.,Interim Decision No. 3572. |
| Citation | 24 I&N Dec. 231 |
| Parties | In re Kattia Guadalupe ESCOBAR, Respondent, |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated February 5, 2007, an Immigration Judge found the respondent removable and ineligible to apply for cancellation of removal under section 240A(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a) (2000). The respondent has appealed from that decision. The appeal will be dismissed.
The respondent is a native and citizen of El Salvador who was born on March 28, 1978. The record reflects that she came to the United States as an unemancipated minor around the age of 4 or 5. The respondent's mother became a lawful permanent resident in 1992, and the respondent was admitted for lawful permanent residence on February 15, 2003. On August 12, 2006, the respondent was arrested for attempting to smuggle an undocumented alien into the United States.
The Immigration Judge found that the respondent admitted to officers of the Department of Homeland Security ("DHS") that she had knowingly attempted to smuggle an 8-year-old Mexican citizen into the United States. Based on these admissions, which were found to be knowing, voluntary, and intelligent, the Immigration Judge concluded that the respondent was removable as a result of alien smuggling.1 Regarding the respondent's application for relief from removal, the Immigration Judge found that because the respondent was admitted as a lawful permanent resident in February 2003, she had not accrued the requisite 5 years of lawful permanent residence to apply for cancellation of removal under section 240A(a) of the Act. In so holding, the Immigration Judge rejected the respondent's argument that she could apply her mother's years of lawful permanent residence to extend her period of residence and thereby qualify for relief.
On appeal, the respondent reiterates her argument that her mother's period of lawful permanent residence can be imputed to her for purposes of satisfying the eligibility requirements under section 240A(a)(1) of the Act. The DHS argues that an alien's status as a lawful permanent resident cannot be transferred from one person to another, even from a parent to an unemancipated minor. Our adjudication of this appeal requires us to interpret the Act and the decision of the United States Court of Appeals for the Ninth Circuit in Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir. 2005), which construed the eligibility requirements for cancellation of removal under section 240A(a) of the Act.
Section 240A(a) of the Act provides in relevant part as follows:
(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.
The term "lawfully admitted for permanent residence" is defined in the Act to mean "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) (2000).
In Cuevas-Gaspar v. Gonzales, supra, the Ninth Circuit held, over a dissent, that lawful admission and residence can be imputed to an unemancipated minor to satisfy the requirement of section 240A(a)(2) of the Act, i.e., continuous residence in the United States for 7 years after having been admitted in any status. We note that only section 240A(a)(2) of the Act was at issue in Cuevas-Gaspar, because there was no question that the alien had been a lawful permanent resident for more than 5 years, as required by section 240A(a)(1). See Cuevas-Gaspar v. Gonzales, supra, at 1021 n.5. The respondent nevertheless argues that the reasoning of the Ninth Circuit's decision should be applied to her case by expanding and extending its holding to section 240A(a)(1) of the Act. We find that such an application is inconsistent with the purpose of the Act and the intent of Congress when it amended the statute to add the relief of cancellation of removal for certain permanent residents.
We first observe that the Ninth Circuit's decision in Cuevas-Gaspar v. Gonzales, supra, relied heavily on the reasoning in Lepe-Guitron v. INS, 16 F.3d 1021 (9th Cir. 1994), where the court construed former section 212(c) of the Act, 8 U.S.C. § 1182(c) (1988), which preceded section 240A(a) and provided similar relief in the form of a waiver.2 In Lepe-Guitron, the Ninth Circuit concluded that because an unemancipated minor residing with his parents shares their "domicile," the respondent's period of lawful domicile began when his parents attained permanent resident status while he was a child. The court looked to the parents' intent in establishing domicile, reasoning that minors are incapable of forming the intent necessary to establish domicile.3
In Cuevas-Gaspar v. Gonzales, supra, at 1026, the Ninth Circuit reasoned that "the difference between `domicile' and residence `after having been admitted in any status' is not . . . so great as to be dispositive." Based on the historical "policy of putting a high priority on relations between permanent legal residents and their children," the court concluded that it would apply the holding in Lepe-Guitron to the 7-year residence requirement for cancellation of removal under section 240A(a)(2), and it would impute a parent's period of residence to his or her child. Id.
We disagree with the reasoning of the majority in Cuevas-Gaspar v. Gonzales, supra, and concur instead with the dissenting opinion in that case. Whatever the correctness of Lepe-Guitron, we find that residence is different from domicile because it "contains no element of subjective intent." Cuevas-Gaspar v. Gonzales, supra, at 1031 (Fernandez, J., dissenting). Accordingly, we conclude that there is no logical or legal basis to consider the residence of a minor alien's parents in determining whether the minor acquired the necessary years of residence. In any event, we do not find it appropriate to extend the rationale of Cuevas-Gaspar v. Gonzales, supra, to the critical question in this case, which is how long the respondent had been lawfully accorded the status of a permanent resident. See section 240A(a)(1) of the Act. Contrary to the respondent's argument, there is no precedent for simply imputing lawful permanent resident status from a parent to a child.4 We have emphasized that adjustment to lawful permanent resident status must be both substantively and procedurally proper. Matter of Koloamatangi, 23 I&N Dec. 548, 550 (BIA 2003). Indeed, the Ninth Circuit has expressly agreed that " " Monet v. INS, 791 F.2d 752, 753 (9th Cir. 1986) (quotingfa Matter of Longstaff, 716 F.2d 1439, 1441 (5th Cir. 1983)). Allowing the status of a parent to simply attach to a child, without regard to the mandated statutory and regulatory application process and the substantive eligibility requirements for admission, would run contrary to the clear intent of Congress, which requires that to be eligible for cancellation of removal, an alien must be "lawfully admitted for permanent residence for not less than 5 years." Section 240A(a)(1) of the Act (emphasis added); see also section 101(a)(20) of the Act (defining lawful permanent resident status as being conferred "in accordance with the immigration laws").5
Furthermore, imputing a parent's status and residence to allow a child to meet the requirements of both sections 240A(a)(1) and (2) of the Act would essentially destroy the distinct tests mandated by Congress when it amended the statute to replace the former section 212(c) waiver with cancellation of removal.6 For example, if imputation of a parent's lawful permanent residence would allow a minor alien to fulfill the requirements for cancellation of removal, the child would never have to become a lawful permanent resident in his own right. Applying the limited holding of Cuevas-Gaspar v. Gonzales, supra, to section 240A(a)(1) of the Act runs contrary to the clear language of the statute, which requires an alien to be lawfully admitted for permanent residence, in his or her own right, for no less than 5 years and to have 7 years of residence after any admission. More importantly, allowing imputation to apply to the 5-year permanent residence requirement would also run counter to the legislative history that is discussed by the Ninth Circuit in Cueva...
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