9th Cir.: Parent’s Status and Residence Can Be Imputed Upon Child for Purposes of Cancellation of Removal

By University of Denver Sturm College of Law

Jun 2, 2009

A panel of the 9th Circuit that included Judge Kim Wardlaw (one of the judges who reportedly received serious consideration to replace Justice Souter on the Supreme Court) recently held that a parent’s status as a lawful permanent resident and continous presence may be imputed by a child for purposes of satisfying the eligibility requirements of Cancellation of Removal under INA 240A(a)(1). See Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir. 2005)).

In Escobar, the 9th Circuit faced a situation where the non-citizen was brought to the United States in the mid-1980s by her mother at approximately 5 years of age. Her mother became an LPR in 1992, but she did not become an LPR until 2003. See Escobar, slip op. at 6192. Just over 3 years later she was caught trying to enter the United States with an undocumented child. See Escobar, slip op. at 6192.

The IJ found that, under Cuevas-Gaspar, Escobar could impute her mother’s continous presence, thus satisfying the seven year continous presence requirement. However, the IJ also found that Escobar could not impute her mother’s LPR status, thus Escobar could not satisfy the five year LPR requirement. In a published decision, Matter of Escobar, 24 I&N Dec. 231 (BIA 2007), the BIA not only affirmed the IJ— it went so far as to disagree with Cuevas-Gaspar entirely. See Escobar, slip op. at 6193.

The 9th Circuit was not pleased. After devoting several pages to the family unification policy underlying imputation and the history of imputation of a parent’s status upon a child, the Court held that “the holding, reasoning, and logic of Cuevas-Gaspar apply equally to the resident status requirements of both section 240A(a)(1) and 240A(a)(2), and thus imputation of the custodial parent’s status to the minor is compelled.” See Escobar, slip op. at 6201. Accordingly, we hold that, for purposes of satisfying the five years of lawful permanent residence required under INA section 240A(a)(1), 8 U.S.C. § 1229b(a)(1), a parent’s status as a lawful permanent resident is imputed to the unemancipated minor children residing with that parent.” Escobar, slip op. at 6209.

The Court then explained that it was not bound by the BIA’s precedential decision in Matter of Escobar because the BIA in that decision adopted the same interpretation of INA § 240A(a) that the 9th Circuit found unreasonable in Cuevas-Gaspar. See Escobar, slip op. at 6201.