Opinion analysis: Deferring to (even more) limited relief from removal

Jill E. Family, Associate Professor and Associate Director, Law & Government Institute, Widener University School of Law

In a unanimous decision on Monday, the Court held that the Department of Justice’s Board of Immigration Appeals (BIA) reasonably construed a statute to forbid the imputation of a parent’s U.S. residency and immigration status to a child to compute the child’s eligibility for relief from removal (deportation).  The Court reversed the decision of the Ninth Circuit in Holder v. Gutierrez, consolidated with Holder v. Sawyers.

Congress created a limited form of relief from removal for lawful permanent residents, known as “cancellation of removal,” under 8 U.S.C. § 1229(b)(a).    According to the statute, if a lawful permanent resident (“green card” holder) meets certain statutory criteria, the Attorney General may exercise his discretion to cancel removal.  Cancellation of removal is one of the very few narrow opportunities for a foreign national who is otherwise deportable to ask for permission to stay in the United States.  Even if the statutory requirements are met, however, that does not guarantee that the foreign national may stay in the country; it simply means that the Attorney General may opt to allow him to stay.  Two of the cancellation eligibility criteria were at issue in these cases:  the requirement that an applicant show at least five years of lawful permanent resident status and the requirement that an applicant show at least seven years of continuous residence in the United States after being admitted in any status.

In these consolidated cases, two foreign nationals, Carlos Martinez Gutierrez and Damien Antonio Sawyers, applied for cancellation of removal.  Martinez Gutierrez had come to the United States when he was five, and his father became a lawful permanent resident in 1991, when Martinez Gutierrez was seven.  However, Martinez Gutierrez himself did not become a lawful permanent resident until 2003, when he was nineteen.  Thus, when the government sought to remove him for alien smuggling in 2005, he could not meet either the five-year lawful permanent residence status or seven years of continuous residence requirements on his own.  Similarly, when the government charged Sawyers with removal after a 2002 controlled substance conviction, he fell just short of the continuous residence requirement.  Both Martinez Gutierrez and Sawyers therefore sought to rely on a parent’s residency and/or status to show eligibility for cancellation of removal.  However, the Attorney General, through the BIA, maintained that the cancellation of removal statute did not permit imputation.

The Court upheld the BIA’s interpretation of the cancellation of removal statute under Chevron U.S.A. v. Natural Resources Defense Council.  The Court explained that the statute does not demand imputation, either explicitly or through its legislative history and legislative purpose.  Even if the statute might permit imputation, it does not require it.  Thus, the statute is not clear and leaves room for the BIA’s interpretation as long as it is reasonable.

Martinez Gutierrez and Sawyers argued that the BIA’s refusal to allow imputation was unreasonable because:  (1) the BIA allowed for imputation in other ambiguous circumstances and its refusal to allow cancellation imputation is therefore inconsistent; and (2) the BIA based its decision to refuse imputation on a misconception that the cancellation statute unequivocally forbids imputation.    Neither argument persuaded the Court.  The Court acknowledged that the BIA has allowed a parent’s circumstances to be imputed to a child in other situations, but it determined that the BIA provided a “reasoned explanation” for the differing treatment.  The BIA permits imputation of states of mind, but not “objective conditions or characteristics.”  The cancellation of removal criteria invoke objective conditions (years of residence and years of status), while other scenarios in which the BIA has permitted imputation involve the transfer of a parent’s intent to a child.  Also, the Court did not read the BIA’s opinion as expressing a belief that the cancellation of removal statute absolutely forbids imputation.  Instead, the Court saw an agency invoking its expertise to decide on what it believed to be the best interpretation of the statute.

While the Court’s opinion reads as a run-of-the-mill application of Chevron, the facts and policy behind the cases exhibit the severity of immigration law.  The consolidated cases highlight how little relief from removal is actually available.  Congress has virtually eliminated the concept of proportionality from immigration law.  Cancellation of removal is already a narrow form of relief, and in this instance the BIA interpreted that relief in an even more limiting way.  The Court held the statute to be ambiguous, which indicates that the BIA might have interpreted the statute to allow imputation, but did not. As explored during oral argument, a child’s future eligibility for cancellation of removal now may hinge on when a parent filed paperwork for the child.  If a parent waited too long, the child will not independently satisfy the status and/or residence requirements to be eligible for cancellation of removal.   In contrast, a parent who filed earlier would bestow on her child a chance to remain.  Such harsh consequences from seemingly random actions out of the control of the child surely will be influential as the debate over immigration reform continues.

Plain English Summary

A statute provides that a foreign national may ask the Attorney General to decide, in his discretion, to cancel removal (deportation) if the foreign national meets certain criteria.  Two of the criteria implicate length of U.S. residence and length of immigration status.  The Board of Immigration Appeals, which is a part of the Department of Justice, interpreted the statutory criteria to forbid the transfer of a parent’s U.S. residence and immigration status to a child if the child cannot meet the criteria on his or her own.  The Supreme Court held that the statutory criteria do not make clear whether such imputation is permissible. Because the statute is ambiguous, the Court explained that it would defer to the Board of Immigration Appeals’ reading of the statute as long as that reading is reasonable.  The Supreme Court held the reading to be reasonable.  This means that the interpretation of the Board of Immigration Appeals survives.  A parent will not be able to transfer residency and/or status to a child to determine the child’s eligibility for relief from removal.