Argument preview: Calculating relief from removal
Jill E. Family is an Associate Professor and Associate Director, Law & Government Institute Widener University School of Law.
Just last month, the Supreme Court applied administrative law principles to reverse a decision of the Department of Justice’s Board of Immigration Appeals (BIA). In Judulang v. Holder, the Court held that the BIA acted arbitrarily and capriciously in implementing a form of relief from removal (deportation). This month, the Court will hear oral argument in two consolidated relief from removal cases that also raise questions of administrative law. As always in immigration law, the stakes are high—the interpretation of a complex statute will decide whether individuals with close connections to the United States since childhood will be forced to leave and separate from their families.
Simply put, Holder v. Gutierrez and Holder v. Sawyers call into question the BIA’s decision to forbid the imputation of a parent’s immigration status and residency in the United States to a minor child for the purpose of calculating eligibility for relief from removal. Scratching that simple surface reveals a complex history of imputation and relief from removal.
Factual and Procedural Background
The two consolidated cases before the Court arose from the applications for cancellation of removal, a type of relief from removal, of two lawful permanent residents whose connections to the United States began as minors.
Carlos Martinez Gutierrez arrived in the United States with his parents when he was five years old. His father became a lawful permanent resident when Martinez Gutierrez was seven. Martinez Gutierrez became a lawful permanent resident himself in 2003 at age nineteen. In December 2005, Martinez Gutierrez was stopped at the U.S.-Mexico border with three undocumented minors in his car. The next day, the government charged that he was removable from the United States under a section of the Immigration and Nationality Act (INA) addressing alien smuggling.
Martinez Gutierrez conceded that he was removable, but he applied for cancellation of removal. The immigration judge granted it, allowing his father’s immigration status and years of residence to be imputed to him to meet the eligibility requirements. The BIA reversed, refusing imputation. The Ninth Circuit granted Martinez Gutierrez’s petition for review and remanded the case to the BIA.
In 1995, then fifteen-year-old Damien Antonio Sawyers became a lawful permanent resident, six years after his mother did so. After Sawyers was convicted of “maintaining a dwelling for keeping controlled substances” in 2002, the government placed him in removal proceedings.
Sawyers also sought cancellation of removal. The immigration judge found him ineligible for that relief because he could not meet the eligibility requirements on his own. The BIA affirmed, refusing to impute his mother’s residence to him. The Ninth Circuit granted Sawyers’s petition for review and reversed.
The federal government then filed petitions for certiorari seeking review (and, ultimately, reversal) of the Ninth Circuit’s decisions. The Court granted the petitions on September 27, 2011.
Under the INA, lawful permanent residents of the United States are not citizens of the United States, but they hold “green cards” and enjoy the right to live and work in the United States with little restraint compared to other lawful immigration categories. One immensely important difference between lawful permanent residents and citizens, however, is that lawful permanent residents may be removed from the United States, while citizens may not.
The INA lists grounds of removal and provides for limited forms of relief from removal. Cancellation of removal is one form of relief. At issue in Gutierrez and Sawyers are the statutory eligibility requirements for cancellation of removal in 8 U.S.C. § 1229b(a):
The Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the United States 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.
If an individual meets the three eligibility requirements and obtains a favorable exercise of discretion, removal is cancelled. The third requirement – that the non-citizen not have any aggravated felony convictions – is not at issue in these consolidated cases.
Cancellation of removal traces its origins to 1996, when Congress created it to replace a type of relief from removal called Section 212(c) relief. Under Section 212(c) relief, which was at issue in Judulang and also is important in Gutierrez and Sawyers, individuals also had to obtain a favorable exercise of discretion, but the statutory eligibility requirements were different. Under Section 212(c), deportation could be suspended for lawful permanent residents with “a lawful unrelinquished domicile of seven consecutive years.”
Imputation and Cancellation of Removal in the Ninth Circuit
Both Gutierrez and Sawyers hinge on whether a parent’s periods of lawful permanent resident status and/or continuous residence may be imputed to a minor child for purposes of calculating whether he is eligible for cancellation of removal.
Under the old Section 212(c) regime, in a case called Lepe-Guitron v. INS, the Ninth Circuit – from which these cases arise – had allowed imputation. The decision to allow imputation in the context of Section 212(c) was partially motivated by use of the term “domicile” in Section 212(c). To the Ninth Circuit, the term “domicile” indicated intent; because minors are incapable of forming such intent, imputation of a parent’s domicile was permitted.
As explained above, in 1996 Congress replaced Section 212(c) relief with cancellation of removal and changed the eligibility requirements from domicile to at least five years in lawful permanent resident status and at least seven years of continuous residence. The Ninth Circuit held in 2005 in Cuevas-Gaspar v. Gonzales that a parent’s period of continuous residence may be imputed to a minor child residing with the parent during that period. Applying Chevron analysis, the Ninth Circuit concluded that a BIA decision forbidding imputation was not a reasonable interpretation of the ambiguous cancellation of removal statute. The Ninth Circuit cited the BIA’s inconsistent treatment of imputation across immigration law as a reason to afford less deference. It also did not believe the change in statutory language from domicile to residence justified upsetting the INA’s overall high priority for the parent-child relationship, especially because Congress meant the change in language to clarify a different issue.
From there, the BIA and the Ninth Circuit engaged in an imputation tug of war that only an administrative law professor could love. In 2007, in a case called In re Escobar, the BIA refused to extend Cuevas-Gaspar by prohibiting imputation from parent to minor child to fulfill the requirement that the non-citizen seeking cancellation of removal have been a lawful permanent resident for at least five years. To the BIA, the shift in statutory language from domicile to residence eliminated the need to consider subjective intent, thereby removing the need for imputation. . In 2008, in Matter of Ramirez-Vargas, the BIA refused to allow imputation to satisfy the seven-year continuous residence requirement, directly conflicting Cuevas-Gaspar. The BIA cited the Supreme Court’s decision in National Cable and Telecommunications Association v. Brand X as justification for reaching a result contrary to the Ninth Circuit. The BIA believed it was bound to its intervening opinion in Escobar.
In 2009, in Mercado-Zazueta v. Holder, the Ninth Circuit rejected the BIA’s treatment of Cuevas-Gaspar, reasserting the binding precedent of that case regarding the continuous residence requirement, and also extending its reasoning to the five-year lawful permanent resident status requirement. The Ninth Circuit rejected the BIA’s reasoning under Brand X, which in its view does not suggest “that an agency may resurrect a statutory interpretation that a circuit court has foreclosed by rejecting it as unreasonable at Chevron’s second step.”
The BIA decided Gutierrez and Sawyers before Mercado-Zazueta. The Ninth Circuit considered the respective petitions for review after Mercado-Zazueta.
The government argues that imputation is contrary to the plain language of the statutory eligibility requirements, the legislative history of the cancellation of removal provision and the BIA’s authoritative interpretation of the statute.
According to the government, the plain language of the statute forbids imputation. The focus on “the alien” renders others irrelevant. The government also invokes the structure of the cancellation of removal statute and its relationship with other sections to support its conclusion against imputation. In terms of legislative history, the Government finds nothing to support imputation. When Congress replaced Section 212(c) relief with cancellation of removal, it disposed of a domicile requirement and replaced it with a residence requirement. By doing that, Congress removed intent from the inquiry, thus undermining the Ninth Circuit’s reasoning. Also, the government argues that any general statutory priority for the parent-child relationship does not override the clear statutory language.
The government proposes that it wins at either step of the Chevron analysis. Since the statute’s plain meaning prohibits imputation, the government believes it wins at step one. Even if the statutory language is ambiguous, however, the government argues that the BIA’s interpretation is entitled to deference as a consistent and reasonable interpretation of an ambiguous statute.
In response, Martinez Gutierrez views the statutory text as silent on the issue of imputation and sees no evidence that Congress intended to disturb imputation when it replaced Section 212(c) relief. The use of terminology such as “the alien” in the statute is not determinative, because if imputation is permitted, “the alien” will meet the eligibility requirements. Moreover, the shift from “domicile” to “residence” resolved a circuit split unrelated to imputation and therefore is not evidence of congressional intent to eliminate imputation.
Martinez Gutierrez argues that the BIA is not entitled to deference because the BIA believed that the plain language of the statute mandated the conclusion to forbid imputation. Even if the BIA was using its expertise to interpret an ambiguous provision, Martinez Gutierrez argues that the interpretation is unreasonable because there is no indication that Congress intended to disturb the imputation rule and because forbidding imputation frustrates foundational principles of the INA: to promote family unity and to allow those with strong ties to the United States the chance to remain. As further evidence of unreasonableness, Martinez Gutierrez points to the BIA’s uneven application of imputation.
Sawyers similarly argues that there is no evidence that Congress intended to vanquish imputation when it replaced Section 212(c) relief with cancellation of removal. Sawyers also rejects the government’s focus on the statutory language “the alien,” also argues that Congress shifted the language from “domicile” to “residence” to achieve another goal and also points out that elimination of imputation is contrary to the INA as a whole. Congress did swap out domicile for residence, but what Congress really meant to invoke was continuous residence. Sawyers argues that showing continuous residence includes intent as a component, which supports the Ninth’s Circuit’s reasoning for allowing imputation.
Applying Chevron, Sawyers argues that the statutory language demands imputation, leaving no room for deference. Even if the statute is ambiguous, the BIA’s interpretation is not entitled to deference because, as Martinez Gutierrez argues, the BIA thought that the statute compelled the conclusion to forbid imputation, because the BIA has presented inconsistent positions on imputation and because the BIA’s treatment of imputation in the context of cancellation of removal is contrary to the statute.
Recommended Citation: Jill E. Family, Argument preview: Calculating relief from removal, SCOTUSblog (Jan. 13, 2012, 11:06 AM), http://www.scotusblog.com/2012/01/argument-preview-calculating-relief-from-removal/