The U.S. Supreme Court held that the BIA reasonably interpreted the cancellation of removal for lawful permanent residents statute, INA § 240A(a), when it demanded that cancellation applicants meet the continuous residence and LPR eligibility requirements on their own. Holder v. Martinez, Nos. 10-1542 and 10-1543, slip op. (U.S. May 21, 2012). The Ninth Circuit had held that the BIA should have allowed applicants to rely on their parents’ residency and LPR status to satisfy the requirement that an applicant have been an LPR for at least five years and continuously resided in the USA for at least seven years. Justice Kagan wrote the Court’s unanimous opinion.
This case involved a consolidation of two Ninth Circuit decisions. In one, the cancellation applicant was convicted of a crime two years after becoming an LPR. In the other case, the LPR was convicted prior to satisfying the seven years continuous residence requirement. Martinez, Nos. 10-1542 and 10-1543, slip op. at 5-6.
In a series of cases, the BIA had refused to allow applicants to impute a parent’s years of continuous residence or LPR status to her child for cancellation purposes. The Third and Fifth Circuits had deferred to the BIA’s approach, but the Ninth Circuit found the BIA’s interpretation unreasonable, thus it refused to follow that approach. Martinez, Nos. 10-1542 and 10-1543, slip op. at 4-5.
On review, the Supreme Court only needed to determine whether the BIA’s approach was reasonable to strike down the Ninth Circuit’s position. The Court had little difficulty concluding that it was.
The respondents’ first argued that the BIA’s refusal to allow imputation regarding cancellation was inconsistent with its allowance of imputation in other circumstances. Martinez, Nos. 10-1542 and 10-1543, slip op. at 10. The Court was not convinced. In Matter of Escobar, 24 I&N Dec. 231 (2007), the Court noted, the Board “provided a reasoned explanation for these divergent results: The Board imputes matters involving an alien’s state of mind, while declining to impute objective conditions or characteristics.” Martinez, Nos. 10-1542 and 10-1543, slip op. at 11.
The Court had just as little difficult with the respondents’ second argument—that the Board didn’t realize it had the discretion to adopt an imputation rule. Martinez, Nos. 10-1542 and 10-1543, slip op. at 10. “To the contrary,” the Court concluded, “the [Escobar] decision expressed the BIA’s view, based on its experience implementing the INA, that statutory text, administrative practice, and regulatory policy all pointed in one direction: toward disallowing imputation.” Martinez, Nos. 10-1542 and 10-1543, slip op. at 13. That is, the BIA chose not to allow imputation; it didn’t think it lacked the power to do so.
Furthermore, just because the BIA could adopt an imputation rule doesn’t mean that it can’t adopt a no-imputation rule. Martinez, Nos. 10-1542 and 10-1543, slip op. at 7. Additionally, the Court explained that it could not assume Congress meant to require imputation when it enacted INA § 240A(a) in 1996 because cancellation is different from relief under former INA § 212(c), the provision that Congress repealed in 1996 and for which it substituted cancellation. Martinez, Nos. 10-1542 and 10-1543, slip op. at 8-9.
This isn’t to say that the BIA’s no-imputation rule struck the Court as wise. On the contrary, it agreed that the no-imputation rule contradicts modern immigration law’s goal of promoting family unity. But family unity, the Court added, is not immigration law’s only goal and in this instance, as in others, Congress clearly chose other goals over family unity. Martinez, Nos. 10-1542 and 10-1543, slip op. at 9-10.
The end result is that the BIA’s interpretation of the cancellation statute is reasonable, according to the Court. As such, the BIA’s decision that a parent’s years of continuous residence or LPR status can’t be imputed onto a child for purposes of the child’s cancellation application stands. Until the BIA’s interpretation changes (or Congress alters the statutory text of the cancellation provision), cancellation applicants will have to meet the continuous residency and LPR status requirements on their own.