842 F.3d 641
9th Cir.2016Background
- Lemus, a Guatemalan who became an LPR in 2006, pleaded guilty in 2011 to making a materially false statement after being stopped with marijuana; DHS initiated removal proceedings based on drug trafficking.
- Cancellation of removal for LPRs requires (inter alia) 7 years of continuous residence post-admission; Lemus could not meet the 7-year test on his own.
- Under Ninth Circuit precedent at the time, an applicant could impute a parent’s (here, stepfather’s) residence to satisfy the residency requirement; Lemus sought to rely on his stepfather’s years.
- The government disputed the stepfather’s admission date; the IJ denied Lemus’s request to compel the stepfather’s A-File and rejected imputation, ordering removal. The BIA affirmed, applying the Supreme Court’s decision in Holder v. Martinez Gutierrez.
- Lemus argued Martinez Gutierrez should not apply retroactively to him because he relied on prior Ninth Circuit precedent when pleading guilty; the Ninth Circuit denied review and held Martinez Gutierrez applies retroactively, so Lemus is ineligible for cancellation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Martinez Gutierrez applies retroactively to Lemus | Lemus: Martinez Gutierrez announced a new rule; under Chevron Oil it should be prospective only because he relied on prior Ninth Circuit law when pleading guilty | Government: The Court is deferring to the BIA’s construction per Martinez Gutierrez; Montgomery Ward retroactivity factors govern and favor retroactivity | Held: Martinez Gutierrez applies retroactively; petition denied |
| Whether imputation of a parent’s residency may satisfy §1229b(a)’s residency requirement | Lemus: may impute stepfather’s residence to meet 7-year requirement | Government: BIA’s construction (no imputation) is reasonable and controls per Martinez Gutierrez | Held: No imputation allowed under §1229b(a); Lemus ineligible for cancellation |
| Proper retroactivity test to apply | Lemus: relies on Chevron Oil (prospective application appropriate) | Government: where court defers to agency (BIA), Montgomery Ward test applies | Held: Montgomery Ward applies when a court defers to an agency rule; Chevron Oil inapplicable here |
| Whether denial of access to stepfather’s A-File prejudiced Lemus | Lemus: lack of A-File foreclosed proof of stepfather’s qualifying years | Government: Even if produced, A-File would not help because imputation is barred | Held: No prejudice; A-File would not change the outcome under Martinez Gutierrez |
Key Cases Cited
- Holder v. Martinez Gutierrez, 132 S. Ct. 2011 (2012) (Supreme Court held BIA reasonably construed §1229b(a) to bar imputation of a parent’s residence)
- Montgomery Ward & Co., Inc. v. FTC, 691 F.2d 1322 (9th Cir. 1982) (five-factor test for retroactive application of agency rules)
- Garfias-Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012) (when court defers to agency, Montgomery Ward governs retroactivity)
- Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011) (applied Chevron Oil to prospectively apply a newly announced circuit rule)
- Chevron Oil Co. v. Huson, 404 U.S. 97 (1971) (traditional framework for prospective-only application of new judicial rules)
- Mercado-Zazueta v. Holder, 580 F.3d 1102 (9th Cir. 2009) (Ninth Circuit precedent allowing imputation prior to Martinez Gutierrez)