By Chad Burchard | June 3, 2012
The Supreme Court issued a unanimous decision on Monday, May 21, in two consolidated cases (Holder v. Gutierrez and Holder v. Sawyers) affecting the ability of certain immigrants to avoid deportation.
Under Section 1229b(a) of the Immigration and Nationality Act (INA), an immigrant faced with deportation may be able to avoid it if they have (1) been a lawful permanent resident (LPR) for at least 5 years, (2) resided in the U.S. continuously for 7 years after lawful admission, and (3) not been convicted of an aggravated felony. Meeting these requirements does not guarantee that the immigrant will be able to avoid deportation, however; it simply means that they are eligible to petition the Attorney General for a cancellation of removal, which the Attorney General may still decide to deny.
The issue confronting the Court was whether or not the Board of Immigration Appeals (BIA) could require “each alien seeking cancellation of removal to satisfy §1229b(a)’s requirements on his own, without counting a parent’s years of continuous residence or LPR status.”
In the cases before the Court, both of the respondents had entered the U.S. as children, attained lawful admittance and LPR status many years after their parents, committed deportable offences and sought cancellation of removal. Both also met with unfavorable rulings from the BIA, which, because of its policy of non-imputation, held that neither could meet the first two requirements of §1229b(a). However, the respondents won their appeals to the Ninth Circuit, which has long disagreed with the BIA on this issue.
As the Court explained, under the test set forth in Chevron U.S.A. v. Natural Resources Defense Council, Inc., an agency’s interpretation of an ambiguous statute is accorded deference “if it is a reasonable construction of the statute, whether or not it is the only possible interpretation or even the one a court might think best.”
The Court had little difficulty concluding that the BIA’s interpretation of §1229b(a) should be accordedChevron deference.
To begin with, the Court observed that the BIA’s “approach is consistent with the statute’s text” as it “calls for ‘the alien’—not say, ‘the alien or one of his parents’—to meet the three prerequisites for cancellation of removal.” The respondents had argued that the statute’s language did not foreclose the possibility of imputation, but to the Court, this missed the point. “Taken alone,” it stated, “the language of §1229b(a) at least permits the [BIA] to go the other way—to say that ‘the alien’ must meet the statutory condition, without relying on a parent’s history.”
The respondents offered other arguments in favor of imputation. They noted that under §212(c) of the INA—which §1229b(a) replaced—several Circuits had held that the BIA should impute parents’ residence and as a result it often did so. However, the Court found that it could not “conclude that Congress ratified an imputation requirement when it passed §1229b(a).”
This was because the language of §212(c) was different from that of its successor. The old §212(c) had given the Attorney General discretion to cancel the removal of an immigrant with LPR status who could show a “lawful unrelinquished domicile of seven consecutive years.” The courts that read in an imputation requirement into the statute did so because they reasoned that “at common law, a minor’s domicile was ‘the same as that of its parents, since most children are presumed not legally capable of forming the requisite intent to establish their own domicile.”
However, when Congress replaced §212(c) with §1229b(a) it “eliminated the very term—“domicile”—on which the appeals courts had founded their decisions.” “That alteration,” the Court concluded, “dooms respondents’ position, because the doctrine of congressional ratification applies only when Congress reenacts a statute without relevant change.
Lastly, the Court disposed of “[r]espondents’ stronger arguments,” that the BIA’s “approach to §1229b(a) cannot be squared with its acceptance of imputation under other, similar statutory provisions” and that in taking its position, the BIA mistakenly “thought Congress had forbidden imputation.”
As to the first argument, the Court agreed that “[t]he BIA has indeed imputed parental attributes to children under other INA provisions that do not mention the matter.” However, it also noted that a BIA decision, In re Escobar, provided an explanation for this: the BIA only applies imputation in “matters involving an alien’s state of mind, while declining to impute objective conditions or characteristics.” The Court saw no reason why the residency requirements of 1229b(a) would not fall in the latter category since they “ hinge not on any state of mind but on the objective facts of immigration status and place of residence.”
As to the second, the Court again reviewed Escobar and remarked: “[w]e see nothing in this decision to suggest that the Board thought its hands tied, or that it might have reached a different result if assured it could do so.”