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Argument recap: Imputing eligibility for relief from removal

Jill E. Family is an Associate Professor and Associate Director, Law & Government Institute, Widener University School of Law.

At oral argument on January 18, the Court questioned the attorneys in Holder v. Gutierrez and Holder v. Sawyers about calculating relief from removal.  At issue in these consolidated cases is whether a parent’s immigration status and residency in the United States may be imputed to a minor child to calculate eligibility for relief from removal.  The Board of Immigration Appeals (BIA) said no; the U.S. Court of Appeals for the Ninth Circuit said yes.

The statutory eligibility requirements for cancellation of removal implicated in these cases are found 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.


Cancellation of removal is a form of relief that abandons removal (deportation) if the eligibility requirements are met and if the government favorably exercises its discretion.  Two of the eligibility requirements are at issue in these consolidated cases:  the status requirement (lawful permanent resident for at least five years) and the residence requirement (continuous residence for at least seven years after admission in any status).

Congress created cancellation of removal in 1996 to replace Section 212(c) relief.  Under Section 212(c), deportation could be suspended for lawful permanent residents with “a lawful unrelinquished domicile of seven consecutive years.”

The 1996 law that created cancellation of removal also broadened the grounds of removability.  As the grounds of removability widen, the availability of relief from removal becomes even more important.

These consolidated cases involve lawful permanent residents connected to the United States since childhood.  Both Martinez Gutierrez and Sawyers need imputation to meet the eligibility requirements for cancellation of removal.  In Gutierrez, the immigration judge imputed Martinez Gutierrez’s father’s immigration status and continuous residence to compute his eligibility.  The BIA reversed.  The Ninth Circuit remanded to the BIA.  In Sawyers, both the immigration judge and the BIA refused to impute Sawyers’ mother’s continuous residence to him.  The Ninth Circuit reversed.

Assistant to the Solicitor General Leondra R. Kruger appeared for the government at oral argument.  On the other side, Stephen B. Kinnaird appeared for Martinez Gutierrez, while Charles A. Rothfeld argued on behalf of Sawyers.

Four main themes emerged during the oral argument:  (1) whether the cancellation of removal statute is ambiguous regarding imputation; (2) whether the BIA articulated a rationale to support its decision to forbid imputation or whether it was motivated by a clear statutory mandate; (3) the significance of the statutory language change from “domicile” in Section 212(c) to “residence” in cancellation of removal; and (4) concern about the practical effects that may stem from the respondents’ positions, coupled with apprehension about the potential effects of the government’s interpretation of the statute.

Kruger opened by restating a main argument of the government’s brief.  Kruger explained that the statute clearly instructs the immigration judge to look to the applicant only, and no one else, to calculate eligibility.  Even if the statute is ambiguous, Kruger argued, the BIA’s interpretation of the statute to forbid imputation is reasonable.

Justice Sotomayor led off with the first question, asking Kruger whether the BIA decided to forbid imputation based on a clear mandate from the statute or whether it did so as an exercise of discretion.  Justice Sotomayor stated that her reading of the BIA’s decision is that the BIA “felt that it had to come to that conclusion as a matter of law,” and asked Kruger where the BIA explained its policy rationale.  Kruger responded that the BIA did believe the statute to be clear, but that it also rested its decision on its expertise, including a determination that an imputation rule would not comport with the statute as a whole.

Chief Justice Roberts turned the argument to the ambiguity of the statute.  He pointed out that the statute does not mention imputation, and Kruger responded that a statute need not address “every conceivable possibility” to not be ambiguous.  Later, Justice Kagan questioned Kruger about the statute’s ambiguity, suggesting that the BIA’s varying treatment of imputation in immigration law reflects ambiguity.  Kruger explained that other instances of imputation involve different statutory provisions and that the BIA has limited its allowance of imputation to scenarios where intent is at issue.  There was some questioning as to the strength of the argument that the BIA has allowed imputation only where intent is at issue.

Justice Ginsburg questioned Kruger about the change in statutory language from “domicile” to “residence.”  Kruger explained that this change is very significant.  According to the government, the change in language eliminates the need to consider the child’s intent; that a child is able to establish a residence independent of his or her parents.  Justice Kennedy later remarked that it is “a little odd” that Congress would ease the relief eligibility requirements in other respects through the change to cancellation of removal, but at the same time would take away imputation, which makes the requirements harsher.  Justice Breyer questioned Kruger about whether residence had been imputed under circuit case law developed before the statutory language change.

The Justices engaged Kruger in a fairly lengthy conversation that revealed hesitation about the effects of the government’s characterization of the statute.  Led by Justice Kennedy, the Justices questioned Kruger about the potentially different treatment of two children based on their parent’s actions.  For example, if there is no imputation, a child’s eligibility for relief may hinge on when his or her parents filed paperwork for the child.  Justice Sotomayor wondered how the government’s interpretation advances the goal of the cancellation of removal statute, which is to give individuals with long-standing ties to the United States an opportunity to stay.  Kruger brought the Justices back to the plain meaning of the statute, which the government views as requiring each individual, even children, to meet the eligibility requirements on his or her own. Kruger also mentioned that the government has discretion with regard to the initial decision of whether to begin removal proceedings at all, and that age is a factor in deciding whether to exercise prosecutorial discretion.

Kinnaird’s portion of the argument led off with further discussion about the ambiguity of the statute.  Chief Justice Roberts questioned whether the statute is ambiguous if it simply does not address imputation.  Kinnaird replied that the statute is ambiguous as applied.

From there, the discussion shifted to the significance of the statutory language change from “domicile” to “residence.”  Justice Scalia asked Kinnaird for an example of when status is imputed, but not intent.  Kinnaird explained that under the old Section 212(c) regime, lawfulness of status necessarily was imputed along with intent.

Chief Justice Roberts and Justice Kagan brought the argument back to ambiguity.  Justice Kagan asked what the BIA needs to do differently if the statute is ambiguous.  Kinnaird replied that the BIA has not recognized the ambiguity and explained a rationale for the decision to forbid imputation.  Chief Justice Roberts questioned whether the BIA is obligated to do what Kinnaird described if the imputation issue is not addressed in the statute.

The Justices questioned Kinnaird about the practical effects of Martinez Gutierrez’s position.  Justice Ginsburg asked Kinnaird if a child who had never become a lawful permanent resident on his or her own could obtain cancellation of removal through imputation.  Kinnaird answered that the child must have his or her own lawful permanent resident status to seek cancellation of removal, but that imputation is permissible to meet the durational requirements.  Justice Kennedy inquired whether imputation would be permissible to a child who lives outside of the United States.

Kinnaird’s portion of the argument ended with a discussion of the reasonableness of the BIA’s decision.  Kinnaird asserted that the BIA’s interpretation contradicts the statutory purpose.  Justice Scalia questioned why the statutory language change from “domicile” to “residence” is not a valid reason for the BIA’s interpretation.  Justice Sotomayor explained that she sees imputation as an equitable doctrine; if it is equitable, she continued, is the BIA required to do more?  Justice Kennedy asked whether Martinez Gutierrez’s position is that forbidding imputation is unreasonable per se, or whether the problem is that the BIA did not explain itself.  Kinnaird answered that Martinez Gutierrez advances both arguments.

At the beginning of Rothfeld’s argument, Chief Justice Roberts again addressed the statute’s ambiguity.  Rothfeld explained that the statute’s requirement of continuous residence includes the concept of imputation.  Later in the argument, Rothfeld explained that Congress would have thought that continuous residence includes imputation because residence is imputable generally and because residence is an element of domicile.  Sawyers’s position is that the statute is not ambiguous; it clearly permits imputation.

In response, Justice Alito asked Rothfeld what different statutory language Congress would need to use to forbid imputation.  Rothfeld responded that “Congress would have had to indicate affirmatively that imputation was impermissible.”  Also, Justice Sotomayor questioned Rothfeld’s underlying assumption that Congress was aware of the ongoing circuit-level judicial conversation about domicile and imputation when it changed the statutory language to “residence.”

The Justices also questioned Rothfeld about the practical effect of Sawyers’s take on the statute.  Justice Ginsburg and Justice Alito pointed out difficulties that would arise in applying an imputation rule, for example, when children are living abroad.  Justice Kennedy asked whether Sawyers’s position would take away the incentive for parents to seek lawful status for their children.

During rebuttal argument, Justice Kennedy asked Kruger to elaborate on whether the BIA articulated policy reasons to support its decision to forbid imputation.  Kruger acknowledged that the BIA was “heavily” influenced by the statute’s clear language, but that it also looked to the history of imputation.  Chief Justice Roberts asked Kruger whether looking to historical treatment is the same as articulating a policy.  Kruger responded that the BIA also looked to the consequences of allowing imputation.  Justice Scalia asked Kruger to respond to the argument that lawfulness of status was imputed under Section 212(c).  Kruger disagreed with that perspective, arguing that intent was imputed, and not status.  Also, Kruger disagreed with Sawyers’s assertion that courts imputed residence when imputing domicile.

Recommended Citation: Jill E. Family, Argument recap: Imputing eligibility for relief from removal, SCOTUSblog (Jan. 20, 2012, 7:00 PM),