Matter of Ramirez-Vargas
| Decision Date | 20 August 2008 |
| Docket Number | File A074 223 635.,Interim Decision No. 3619. |
| Citation | 24 I&N Dec. 599 |
| Parties | Matter of Javier RAMIREZ-VARGAS, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
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 any 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 Cuevas-Gaspar.
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...
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