Lead Opinion
Opinion by Judge WARDLAW; Concurrence by Judge GRABER.
We must decide whether our decision in Cuevas-Gaspar v. Gonzales,
I. FACTUAL AND PROCEDURAL BACKGROUND
Kattia Guadalupe Escobar (“Escobar”) is a native and citizen of El Salvador. She came to the United States and settled in California with her mother in the early 1980s, when she was approximately five years old. Her mother adjusted her status to lawful permanent residence on March 3,1992, when Escobar was thirteen. Escobar herself attained lawful permanent resident status on February 15, 2003. She has two U.S. citizen children.
On August 12, 2006, after Escobar attempted to drive an undocumented Mexican child across the border from Tijuana,
In removal proceedings, the immigration judge (“IJ”) found Escobar removable under section 212(a)(6)(E)® and held that she was ineligible for cancellation of removal as a lawful permanent resident. Title 8 U.S.C. § 1229b(a) provides for cancellation of removal for a permanent resident who “(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.” Under Cuevas-Gaspar, the seven-year continuous residence requirement in subsection (a)(2) was satisfied for Escobar by imputing the 1992 admission of her mother for permanent residence. See
Escobar appealed to the Board of Immigration Appeals (“BIA”), raising only the issue of her eligibility for cancellation of removal. In a published decision, the BIA noted its disagreement with Cuevas-Gaspar, declined to apply Cuevas-Gaspar
More than five months later, Escobar submitted a motion to reopen to the BIA, raising the new argument that it was legally impossible to have “encouraged, induced, assisted, abetted, or aided” a minor, age eight, “to enter or to try to enter the United States” illegally, because a child of that age lacked the capacity to intend “to enter.” 8 U.S.C. § 1182(a)(6)(E)®. The BIA denied her motion in a one-judge per curiam decision on April 4, 2008, as untimely. The BIA also stated that, even if it were “to reopen proceedings sua sponte, the respondent has failed to establish a likelihood of success on the merits of her claim.” Escobar timely appealed the denial of her motion to reopen, and we consolidated the petitions for review. See 8 U.S.C. § 1252(b)(6).
II. JURISDICTION AND STANDARD OF REVIEW
Under 8 U.S.C. § 1252(a)(2)(D), we have jurisdiction to review constitutional claims and questions of law involved in the otherwise discretionary decision to deny cancellation of removal. See Mota v. Mukasey,
III. DISCUSSION
A. Escobar’s Eligibility for Cancellation of Removal
1. Imputation of Status, Intent, and State of Mind to Unemancipated Minor Children
“[B]oth the BIA and this court repeatedly have held that a parent’s status, intent, or state of mind is imputed to the parent’s unemancipated minor child in many areas of immigration law, including asylum, grounds of inadmissibility, and legal residency status.” Cuevas-Gaspar,
a. Section 212(c) and Lepe-Guitron
In Lepe-Guitron, we considered whether, “under section 212(c), a parent’s lawful unrelinquished domicile is imputed to his or her minor children.”
First, we observed that the “position espoused by the government would subvert the fundamental policies animating section 212(c).” Id. Severing the “bonds between parents and their children who had resided legally in the United States for the better part of their lives” would frustrate the section’s “just and humane goal of providing relief to those for whom deportation would result in peculiar or unusual hardship.” Id. at 1024-25 (citations and internal quotation marks omitted). Thus, “section 212(e)’s core policy concerns would be directly frustrated by the government’s proposal to ignore the parent’s domicile in determining that of the child.” Id. at 1025. The existence of other “sections of the INA giving a high priority to the relationship between permanent resident parents and their children” lent strength to this analysis.
Second, Congress’s use of the term “domicile” reinforced the imputation of this form of status, because children are, “legally speaking, incapable of forming the necessary intent to remain indefinitely in a particular place,” id., and thus cannot determine their own domicile, id. at 1025-26. We therefore held that “parents’ ‘lawful unrelinquished domicile’ should be imputed to their minor children under section 212(c).” Id. at 1026 (quoting 8 U.S.C. § 1182(c)). The Second and Third Circuits, the only other circuits to consider this issue before IIRIRA repealed section 212(c), reached the same conclusion, imputing a parent’s accumulation of lawful unrelinquished domicile to that parent’s minor children. See Rosario v. INS,
b. Section 2J/.0A(a) and Cuevas-Gaspar
We first considered the possibility of imputation under section 240A(a) in Cuevas-Gaspar. See
Because the BIA interpreted section 240A(a) in its opinion, we applied Chevron deference in our review, asking “(1) whether ‘the statute is silent or ambiguous with respect to the specific issue,’ and if so (2) whether the agency’s interpretation is based on a reasonable, permissible construction of the statute.” Cuevas-Gaspar,
2. The Statutory Framework and Congressional Intent
Before its repeal, section 212(c) provided that “[ajliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General.” 8 U.S.C. § 1182(c) (repealed 1996).
In applying section 212(c), the courts of appeals developed conflicting interpretations of its requirement that permanent residents demonstrate “a lawful unrelinquished domicile of seven consecutive years.” Id. Our circuit and the Fourth Circuit followed the BIA’s longstanding interpretation, restricting the accumulation of “lawful unrelinquished domicile” to immigrants who had been admitted for permanent residence. See Castillo-Felix,
The legislative history confirms that by enacting IIRIRA, Congress intended to address, among other things, the circuits’ varying interpretations of section 212(c). In 1995, the Senate had considered a predecessor bill to IIRIRA entitled the Immigration Enforcement Improvements Act, 5. 754, 104th Cong. (1995). See 141 Cong. Rec. S6082-04, S6092 (May 3, 1995). In Title III, section 309(b)(1), the bill set forth a cancellation of removal provision with the same basic requirements as section 240A(a): five years of permanent residence, and seven years of continuous residence.
Section 240A(a) resolved the section 212(c) circuit split with the same compromise that had been proposed in the Immigration Enforcement Improvements Act, requiring at least five years of residence after being “lawfully admitted for permanent residence” and seven years of continuous residence “after having been admitted in any status.” 8 U.S.C. § 1229b(a)(l), (2). It is thus apparent that, in enacting section 240A(a), Congress “intended to clear up a longstanding disagreement between the various courts of appeals and the BIA regarding the type of status necessary to qualify for relief under former § 212(c).” Cuevas-Gaspar,
The Attorney General may cancel deportation in the case of an alien who is deportable from the United States and:
(1) is and has been a lawful permanent resident for at least 5 years who has resided in the United States continuously for 7 years after being lawfully admitted and has not been convicted of an aggravated felony or felonies for which the alien has been sentenced, in the aggregate, to a term of imprisonment of at least 5 years. 141 Cong. Rec. at S6098. The similarity between this provision and section 240A(a) is readily apparent.
Moreover, it is equally apparent that Congress’s modifications to section 212(c) were not intended to alter the availability of imputation to the unemancipated minor children of parents who qualified for relief. The circuits did not split as to the underlying policy objectives motivating section 212(c), but simply over the type of status necessary to satisfy “lawful unrelinquished domicile.” Therefore, the fundamental
3. The BIA’s Decision in In re Escobar
In denying Escobar’s direct appeal, the BIA disagreed with our opinion in Cuevas-Gaspar and declined to apply our reasoning to the five-year residence requirement in section 240A(a)(l). See In re Escobar, 24 I. & N. Dec. at 233-35. However, the holding, reasoning, and logic of Cuevas-Gaspar apply equally to the resident status requirements of both section 240A(a)(l) and 240A(a)(2), and thus imputation of the custodial parent’s status to the minor is compelled.
a. Our Deference to the BIA
It is “well-established that Congress delegated to the BIA the authority to promulgate rules, on behalf of the Attorney General, that carry the force of law ‘through a process of ease-by-case adjudication.’ ” Garcia-Quintero,
b. The Requirement of “Lawful” Admission for Permanent Residence and the Question of Congressional Intent
Contrary to the government’s assertion, Cuevas-Gaspar is controlling precedent for the imputation of “lawful permanent resident status from a parent to a child.” In re Escobar, 24 I. & N. Dec. at 234. Further, although being “lawfully admitted for permanent residence” is a term of art, defined in 8 U.S.C. § 1101(a)(20) as “the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed,” it does not follow that allowing imputation for the five-year permanent residence requirement would “ran contrary to the clear intent of Congress.” In re Escobar, 24 I. & N. Dec. at 234.
First, review of the plain language of the statute demonstrates that both sections 212(c) and 240A(a)(l) use a variant of the word “lawful” in setting out their requirements. Section 212(c) required “lawful unrelinquished domicile,” and section 240A(a)(l) requires an applicant to have been “lawfully admitted for permanent residence.” Thus, the government’s emphasis on section 240A(a)(l)’s requirement
Second, because Escobar actually has been admitted for permanent residence, it is beyond dispute that she has satisfied the substantive and procedural requirements of admission for permanent residence.
Finally, the government wrongly asserts that allowing imputation under section 240A(a)(l) would be “inconsistent with the purpose of the [INA] and the intent of Congress when it amended the statute to add the relief of cancellation of removal for certain permanent residents.” Id. at 233. If section 240A(a)’s silence regarding imputation suggests anything, it suggests that Congress acquiesced in the unanimous practice of the circuits to consider the issue, all of which had found imputation appropriate under section 212(c). Regard
Moreover, even with imputation, the requirements of section 240A(a)(l) and (2) remain distinct, as all applicants for cancellation of removal as permanent residents are still required to demonstrate both five years spent as a lawful permanent resident and seven years of residence after admission in any status.
c. The BIA’s Consistent Willingness To Impute in Other Contexts
The government champions the BIA’s assertion that its prior decisions do “not support the automatic imputation of lawful permanent resident status from parent to child,” noting that the cases cited in Cuevas-Gaspar “all deal with aliens whose relatives abandoned their lawful permanent resident status and the resulting imputation of the abandonment of that status.” 24 I. & N. Dec. at 234 n. 4. The government identifies two reasons why this distinction is relevant.
First, the government notes that imputing the abandonment of permanent resident status is consistent with the “longstanding policy that a child cannot form the intent necessary to establish his or her own domicile.” Id. This observation lacks relevance; it is a distinction that makes no difference. The argument appears to be that the abandonment of permanent resident status requires intent, and therefore imputation is appropriate, whereas the acquisition of permanent resident status does not require intent, so imputation is not appropriate. But we know of no authority for the proposition that intent, standing alone, is the touchstone of imputation analysis. In Cuevas-Gaspar, we dealt with a more cogent version of this argument. See
Second, the government’s insistence that “acquiring lawful permanent resident status, with the attendant eligibility requirements, is necessarily more complicated than abandoning such status,” In re Escobar, 24 I. & N. Dec. at 234 n. 4, is similarly not probative. As noted, there is no dispute that Escobar satisfied the “attendant eligibility requirements” to acquire permanent resident status. Moreover, the fact that it may be more complicated to acquire permanent resident status than to abandon it does not provide any indication as to whether imputation is more appropriate for one than the other. If there is any reasonable conclusion to be drawn from that fact, it is that the complications associated with acquiring permanent resident status favor imputation, as minor children are less equipped to deal with those complications on their own.
Accordingly, the BIA’s explanation of its inconsistent imputation practices remains “ ‘so unclear or contradictory that we are left in doubt as to the reason for the change in direction.’ ” Marmolejo-Campos v. Holder,
d. The BIA’s Interpretation of Section 2I0A(a)(l) Is Unreasonable
We acknowledge that, at Chevron’s second step, “[d]eferenee to an agency’s interpretation is especially appropriate in the immigration context where officials exercise especially sensitive political functions that implicate questions of foreign relations.” Morales-Izquierdo,
With this framework in mind, Cuevas-Gaspar compels the conclusions that imputation under section 240A(a)(l) is appropriate, and that a contrary interpretation of the statute is not permissible.
Moreover, the BIA’s interpretation of the statute remains demonstrably contrary to the fundamental purposes motivating the discretionary relief Congress made available in section 240A(a). Escobar has spent almost her whole life within the United States. When Escobar was only thirteen and her mother attained lawful permanent resident status, Escobar easily could have adjusted her own status as well, with the assistance of her mother. Not only is it absurd to penalize Escobar for her mother’s failure to include her in the adjustment process, but it flies in the face of common sense to conclude that a lawful permanent resident such as Escobar, who has spent more than two decades establishing a life in this country, cannot be eligible for cancellation of removal, which is premised on the longstanding “congressional policy of recognizing that presence in the United States of an extended length gives rise to such strong ties to the United States that removal would result in undue hardship.” Cuevas-Gaspar,
e. Brand X and Duran Gonzales Do Not Alter Our Analysis at Chevron’s Second Step
The BIA recently relied on In re Escobar to deny imputation for section 240A(a)(2)’s seven-year requirement within our circuit, directly conflicting with our holding in Cuevas-Gaspar. See Matter of Ramirez-Vargas, 24 I. & N. Dec. 599 (BIA 2008). In Matter of Ramirez-Vargas, the BIA applied the Supreme Court’s decision in National Cable & Telecommunications Ass’n v. Brand X Internet Services,
The BIA’s reliance on Brand X and Duran Gonzales in Matter of Ramirez-Vargas is misplaced. Most notably, in Brand X itself, in reaching the prior decision at issue, AT & T Corp. v. Portland,
Similarly, in Duran Gonzales, we observed that our previous decision in Perez-Gonzalez had “clearly relied on the agency regulations to reconcile the inadmissibility provision with the special adjustment provision.”
In sum, neither Brand X nor Duran Gonzales suggests that an agency may resurrect a statutory interpretation that a circuit court has foreclosed by rejecting it as unreasonable at Chevron’s second step.
B. The Motion to Reopen
Escobar concedes that her motion to reopen was untimely. Absent exceptional circumstances, the untimeliness of a motion to reopen bars consideration of the merits, because we lack jurisdiction to consider whether the BIA properly refused to reopen a case sua sponte. Toufighi v. Mukasey,
Escobar argues that we should follow Cardoso-Tlaseca in reaching the merits of her motion. In Cardoso-Tlaseca, we granted and remanded a petition for review in which the petitioner faced removal on the basis of a conviction that had been subsequently vacated and expunged. See
Cardoso-Tlaseca is inapposite. Escobar’s new legal theory is not comparable to a vacated conviction, particularly because this theory did not arise from a change in law or newly discovered evidence. On the contrary, the argument was available from the outset of Escobar’s removal proceedings. Moreover, the BIA denied Cardoso-Tlaseca’s motion to reopen because he had left the United States, not because his petition was untimely.
Escobar also has not satisfied any of the well-established grounds warranting equitable tolling of the deadline to file a motion to reopen. See Iturribarria v. INS,
CONCLUSION
Viewing section 240A within the context of the INA, Cuevas-Gaspar compels the conclusion that the BIA’s interpretation of section 240A(a)(l) is unreasonable. It is
We further conclude that the BIA did not abuse its discretion in denying Escobar’s motion to reopen as untimely.
PETITION No. 07-72843 GRANTED and REMANDED for further proceedings consistent with this opinion; PETITION No. 08-71777 DISMISSED.
Notes
. While Escobar was in Tijuana, she agreed to take the child across the border to see his mother, who was near death in a hospital in the United States. In a sworn statement given to Border Patrol officers shortly after they discovered the child’s identity, Escobar ad
. In Ramos Barrios, we declined to impute a parent's "physical presence” for purposes of satisfying the requirement set forth in 8 C.F.R. § 1240.66(b)(2). See Ramos Barrios,
. INA section 240A(a), 8 U.S.C. § 1229b(a), governs cancellation of removal for permanent residents. The provision was enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA”), Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996), to replace and modify a similar form of relief previously available under INA section 212(c), 8 U.S.C. § 1182(c) (repealed 1996). See IIRIRA § 304(b), 110 Stat. 3009-597; INS v. St. Cyr,
. We explained the high priority given to alien children in the context of visa preferences and waiver:
Sections 1152 and 1153, which allocate the annual quota of immigrant visas, provide a preference for the alien children of United States residents and citizens. 8 U.S.C. §§ 1152(a)(4), 1153(a)(1) & (2). In considering applications for permanent resident status, a child residing outside the United States is given the same priority date and preference category as that of his or her parents. [8 C.F.R. § 1245.1(e)(vi)(B)(l) ]. The Act even provides a waiver of excludability for certain immigrants who have helped their alien children enter the United States illegally. 8 U.S.C. § 1182(a)(6)(E)(ii) (family reunification waiver).
Lepe-Guitron,
. Although section 212(c) "applies by its terms only to exclusion proceedings- under subsection (a) of § 1182, judicial decisions ... extended its reach to deportation proceedings.” Lepe-Guitron,
. Section 309(b) provided, in relevant part:
. In enacting section 240A, Congress also intended to make cancellation of removal unavailable to lawful permanent residents who had been convicted of aggravated felonies. See 8 U.S.C. § 1229b(a)(3); Cuevas-Gaspar,
. Indeed, the BIA's reliance on the same arguments in In re Escobar to reject both Escobar's appeal and Cuevas-Gaspar confirms that the rationale for imputation under section 240A(a)(2) applies with equal force to section 240A(a)(l), and that the BIA’s interpretive positions are indistinguishable.
. We therefore do not consider the imputation of lawful permanent resident status to an unemancipated minor who has never been admitted for permanent residence.
. For example, an unemancipated minor who spent seven years in the United States with parents who had not attained lawful permanent resident status might be able to satisfy the seven-year requirement through imputation, but would not be able to satisfy the five-year requirement.
. It is noteworthy that at least one member of the BIA has also reached this conclusion, albeit in an unpublished decision. See In re Guerra, No. A77 988 500,
. In Brand X, the Supreme Court held that "[a] court’s prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.”
. In Duran Gonzales, we considered a conflict between our interpretation of certain provisions of IIRIRA in Perez-Gonzalez v. Ashcroft,
. Indeed, the Brand X majority’s reasoning confirms this conclusion. After pronouncing its general holding that a "court’s prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision ... follows from the unambiguous terms of the statute,”
A contrary rule would produce anomalous results. It would mean that whether an agency’s interpretation of an ambiguous statute is entitled to Chevron deference would turn on the order in which the interpretations issue: If the court's construction*480 came first, its construction would prevail, whereas if the agency's came first, the agency's construction would command Chevron deference.
Id. at 983,
Concurrence Opinion
concurring:
I concur fully in Judge Wardlaw’s opinion. I write separately to express my concern with both the BIA’s current rule and our holding in Cuevas-Gaspar v. Gonzales,
To qualify for cancellation of removal, a person must have had permanent resident status for five years, 8 U.S.C. § 1229b(a)(l), and must have had continuous residence under “any” legal immigration status for seven years, id. § 1229b(a)(2). The Board of Immigration Appeals (“BIA”) has interpreted those requirements strictly: A parent’s legal status cannot be imputed to a child.
The BIA’s rule is undeniably harsh. Its effect is to remove children who have lived in the United States for at least seven years and whose parents have had permanent resident status for at least five years. Moreover, the children may have arrived here at a very young age and have no ties to the designated country of removal. The children may not speak the language, know anyone there, or have any connection other than the country name on their birth certificates. The BIA’s rule faults these children because their parents, for whatever reason, chose not to seek legal status for the children at the same time that they themselves sought legal status.
In Cuevas-Gaspar,
Despite the harshness of the BIA’s current rule, and despite the equal or greater reasonableness of a less harsh rule, I think that, as a matter of statutory interpretation and Chevron deference, Cuevas-Gaspar was wrongly decided. If not for Cuevas-Gaspar, I would conclude that, under the demanding standard of Chevron deference, the BIA’s interpretation is reasonable. I am not alone. See Cuevas-Gaspar,
Were the question not already decided by Cuevas-Gaspar, then, I would feel constrained as a judge to defer to the BIA’s interpretation of the statute. Unless and until the BIA reverses course or Congress fills the gap in the immigration laws, we must defer to the agency’s expertise — -my personal misgivings notwithstanding.
. The BIA has stated that it "will ... not follow [Cuevas-Gaspar ] in cases arising outside the jurisdiction of the Ninth Circuit.” In re Escobar, 24 I. & N. Dec. at 235. Thus, its rule is uniform everywhere except the Ninth Circuit.