On July 25, 2012, the Social Security Administration published SSR 12-2p. 77 Fed. Reg. 43640-43644. The Ruling which applies to all levels of SS adjudication concerns fibromyalgia. The Ruling formerly recognizes fibromyalgia as a medically determinable impairment (MDI) As is the case with other medically determinable impairments, a physician must diagnose but then functional assessments by other treating professionals can be considered.  The ruling recognizes that persons suffering from fibromyalgia have good and bad days so that occasionally they function as normal. This does not preclude disability.  The ruling emphasizes the importance of longitudinal and treating records.  Disabling severity can be established by diagnosis, pain and either 11 out of 18 possible tender points on a person’s body as established by the American College of Rheumatology in 1990 or 6 or more co-existing conditions including but not limited to fatigue and cognitive impairments sometimes called fibro fog. The latter list comes from the American College of Rheumatologists also.  The ruling points out that there is no listing for fibromyalgia but that the illness could equal a listing. In my experience, ALJs are very reluctant to find equivalence in the absence of a medical expert. The same ALJs rarely, if ever, voluntarily call a Medical Expert.  Another possible shortcoming of the ruling is   emphasis on somewhat onerous documentation of the various requirements by the treating provider.  I urge everyone to read this ruling and exchange thought s about it. .

On July, the Congressional Budget Office published a report concerning the growth in the SS disability rolls.  It appears that the growth in rolls has largely been in the age cohort of 45 and older.  Thus the aging of the Baby Boomers  who have reached our disability prone years  provides a temporary bump in the awards.   Another cause of the increase in awards is the increase of women in the paid work force during the last 40 years.   I suggest the whole study for further reading.

On the same day as the Fibromyalgia ruling, SSA published in the Federal Register, a final regulation about expedited residual functional assessment at Step 5 of the sequential analysis. 77 Fed. Reg. 43492-43497; 20 CFR 150 (h).  It looks rather like the Texas two-step to me.  Apparently, adjudicators can skip step 4, analysis of past relevant work, if the person can be found  “not disabled” at step 5.  If the person is likely to be disabled at step 5, then SSA steps back to consideration of past relevant work at Step 4.  Please read this one for yourself and share your thoughts as well.

I am honored to serve as your Disability Law Section Chair for 2012-2013. As some people know, I love to participate in organizations. I was and am very active in Business and Professional Women (BPW) and acted as state president in 2000-2001 and as Jackson Area BPW president 4 times, with the last two terms just ending in May 2012. I am active in TLAW; currently I am recording secretary.  I am also passionate about my work. I am a Board Certified Social Security Specialist; I practice with Legal Services and have done so for almost 25 years.  For the last 4 years my colleagues and I have advocated with DDS and the Tennessee DHS to reach improvements there.

My next goal is to provide another great CLE in April of next year. Last year the Executive Council, acted as a committee of the whole to produce last year’s program.  We welcome all ideas for programming as well. I say we because we as a section have great staff support, I am not always accustomed to having staff at all in organizations.

Our section needs executive council members. We generally meet by conference call monthly. It is not a big burden.

Another goal is to have at least two and maybe 3 or 4 newsletters. An ALJ is working on an article, which will likely not be through all SSA levels of approval until early October.  Another practitioner has promised an article in the fall. Our section needs volunteer articles.

Feedback from the foregoing is appreciated. 

Beth Stricklin Bates, TBA Disability Law Section Chair

I am honored to serve as your Disability Law Section Chair for 2012-2013. As some people know, I love to participate in organizations. I was and am very active in Business and Professional Women (BPW) and acted as state president in 2000-2001 and as Jackson Area BPW president 4 times, with the last two terms just ending in May 2012. I am active in TLAW; currently I am recording secretary.  I am also passionate about my work. I am a Board Certified Social Security Specialist; I practice with Legal Services and have done so for almost 25 years.  For the last 4 years my colleagues and I have advocated with DDS and the Tennessee DHS to reach improvements there.

My goals include asking the Board of Governors to write a letter of support to Tennessee DHS Commissioner Hatter calling for the increased dissemination of checkbox Medical Source Statements to treating physicians and providers.  These forms were developed by Social Security; HA 1151 and HA 1152 are examples which are slightly too large for this newsletter.

My next goal is to provide another great CLE in April of next year. Last year the Executive Council, acted as a committee of the whole to produce last year’s program.  We welcome all ideas for programming as well. I say we because we as a section have great staff support, I am not always accustomed to having staff at all in organizations.

Our section needs executive council members. We generally meet by conference call monthly. It is not a big burden.

Another goal is to have at least two and maybe 3 or 4 newsletters. An ALJ is working on an article, which will likely not be through all SSA levels of approval until early October.  Another practitioner has promised an article in the fall. Our section needs volunteer articles. Also, if you would like to be listed as someone one who wants referrals who move into your area from too far away for the prior attorney to travel; let me know.  Also, if you take federal or circuit court appeals and would like to be listed for referrals, let me know.

Feedback from the foregoing is appreciated.  Beth Stricklin Bates, TBA Disability Law Section Chair

On July 25, 2012, the Social Security Administration published SSR 12-2p. 77 Fed. Reg. 43640-43644. The Ruling which applies to all levels of SS adjudication concerns fibromyalgia. The Ruling formerly recognizes fibromyalgia as a medically determinable impairment (MDI) As is the case with other medically determinable impairments, a physician must diagnose but then functional assessments by other treating professionals can be considered.  The ruling recognizes that persons suffering from fibromyalgia have good and bad days so that occasionally they function as normal. This does not preclude disability.  The ruling emphasizes the importance of longitudinal and treating records.  Disabling severity can be established by diagnosis, pain and either 11 out of 18 possible tender points on a person’s body as established by the American College of Rheumatology in 1990 or 6 or more co-existing conditions including but not limited to fatigue and cognitive impairments sometimes called fibro fog. The latter list comes from the American College of Rheumatologists also.  The ruling points out that there is no listing for fibromyalgia but that the illness could equal a listing. In my experience, ALJs are very reluctant to find equivalence in the absence of a medical expert. The same ALJs rarely, if ever, voluntarily call a Medical Expert.  Another possible shortcoming of the ruling is   emphasis on somewhat onerous documentation of the various requirements by the treating provider.  I urge everyone to read this ruling and exchange thought s about it. .

On July, the Congressional Budget Office published a report concerning the growth in the SS disability rolls.  It appears that the growth in rolls has largely been in the age cohort of 45 and older.  Thus the aging of the Baby Boomers  who have reached our disability prone years  provides a temporary bump in the awards.   Another cause of the increase in awards is the increase of women in the paid work force during the last 40 years.   I suggest the whole study for further reading.

On the same day as the Fibromyalgia ruling, SSA published in the Federal Register, a final regulation about expedited residual functional assessment at Step 5 of the sequential analysis. 77 Fed. Reg. 43492-43497; 20 CFR 150 (h).  It looks rather like the Texas two-step to me.  Apparently, adjudicators can skip step 4, analysis of past relevant work, if the person can be found  “not disabled” at step 5.  If the person is likely to be disabled at step 5, then SSA steps back to consideration of past relevant work at Step 4.  Please read this one for yourself and share your thoughts as well.

Mark C. Travis*

In 1997, the Industrial and Labor Relations School of Cornell University conducted a comprehensive study of the use of alternative dispute resolution in the Fortune 1000. The results of that study were later published in a book, Emerging Systems for Managing Conflict: Lessons from American Corporations for Managers and Dispute Resolution Professionals.  After the passage of more than 10 years, coupled with the environmental factors of increased litigation, budget crises in the courts, and decisional trends in the courts, a new survey of the Fortune 1000 was conducted in 2010 and 2011. The survey was co- sponsored by the Scheinman Institute on Conflict Resolution at Cornell, the International Institute for Conflict Prevention and Resolution and the Straus Institute for Dispute Resolution at the Pepperdine Law School.

The objectives of this study were to obtain information regarding mediation, arbitration, and other ADR techniques used by major U.S. corporations; to identify trends comparing results with the results obtained in the 1997 study; to discover emerging policies and practices in the use of ADR by major corporations; and to understand the factors that explain the trends and patterns in the use of ADR.  While the results have not been officially published, the results were presented in a session at the conference of the Dispute Resolution Section of the American Bar Association in April in Washington. The following is a brief summary of that presentation.

Experience with Types of ADR

This component of the study measured the proportion of corporations that used the particular form of ADR at least once in the previous three years.

This component of the study shows that usage of all forms of ADR Process has remained strong. Perhaps the most notable point from this part of the study shows a fairly strong increase in the use of internal dispute resolution mechanisms such as peer review and ombudsmen.

Principal Reasons Companies Use ADR – 2011

Change in Use of Mediation by Type of Dispute

This part of the survey looked at the proportion of corporations that used mediation at least once in each of the following type of dispute in the previous three years:

Change in Use of Arbitration by Type of Dispute

This segment of the study measured the proportion of corporations that used arbitration in the particular type of dispute at least once in the previous three years.

This component of the study is noteworthy in two particular aspects. It is obvious that the use of arbitration in both commercial and employment cases has reduced significantly.  Perhaps the reason (or reasons) can be discerned in the analysis below. Beyond that summary, respondent interviews revealed other explanations for the decline in the use of arbitration, such as the opinion that arbitration has increasingly become similar to litigation, and that external law has made arbitration more complex, costly, and time-consuming.

Principal Reasons Companies Did Not Use Arbitration by Type of Dispute

The initial findings of the study concluded that about 50% of the respondents have adopted ADR as their principal approach to resolving consumer, commercial, and employment disputes. Additionally, while the use of mediation has remained essentially constant over the last 15 years, there is a trend toward the embrace of a wider array of ADR techniques and seek to resolve disputes at the earliest possible stage such as fact-finding, ombudsmen, and peer review.

On the other hand, the survey found that a significant proportion of major corporations – possibly 40% - continue to rely on traditional methods of resolving disputes. The survey also notes a substantial and possibly growing divide between companies that rely heavily on ADR and companies that do not.

*Mark C. Travis, J.D., LL.M., is an independent mediator and arbitrator and also serves as the Director of the Tennessee Center for Workforce Relations. A past chair of the Dispute Resolution Section of the Tennessee Bar, he serves on the panels of the American Arbitration Association, the Federal Mediation and Conciliation Service, the National Mediation Board, and the Financial Industry Regulatory Authority. He can be reached at mtravis@travisadr.com.

By Bruce Buchanan*

As we finish applauding or booing (whichever you feel like) President Obama’s decision to grant deferred action to DREAMers, we need to think about potential I-9 compliance issues which may arise with so many individuals receiving work authorization documents or cards (EADs).

One potential issue is where a current employee receives an EAD but previously he provided fraudulent documentation, such as a fraudulent permanent resident card, EAD, or Social Security card, to you, the employer.  That employee then presents a new and valid EAD to the HR manager and confides the prior documentation was fraudulent. What should an employer do in this situation? Much depends on your company’s policy on presenting fraudulent documents or lying on a company or government document.

There are several options. The first is to accept the new EAD, have a new I-9 form filled out and attach the old I-9 form to the new one with an explanation of the circumstances of completing the new I-9 form. If your company has a policy or practice of copying the underlying documentation, or is required to under state law, the new EAD should be copied. This option should only be utilized if your company does not have a policy or practice of automatic termination for presenting fraudulent documents or lying on a company or government document.

A second option is to inform the employee that your company has a policy prohibiting employment of employees who have presented fraudulent documents or lied on a company document. Thus, the employee is going to be terminated. However, if the company does not have a policy prohibiting their re-hire, the company may offer to re-hire the employee and fill out a new I-9 form with an explanation of the circumstances.

The third option is to inform the employee that your company has a policy prohibiting employment of employees who have presented fraudulent documents or lied on a company or government document and that employee is not eligible for rehire. Thus, the employee must be terminated without a chance of rehire. This action is particularly harsh but may be the only way for an employer to go if it wants to remain consistent with its policy.

The option that a company chooses will be dictated by your company’s policy and practice. Don’t have a policy concerning employment of employees who have presented fraudulent documents or lied on a company document?  It may be time to start thinking about getting one. Consult with a qualified immigration compliance or employment attorney to develop an I-9 policy that addresses all the current legislation and best practices.

A second DREAMer concern is a reminder on how employers should treat EADs.  For some employers, the EAD may be a document that they rarely see.  The four largest groups who receive an EAD are individuals on TPS, with OPT status, asylees (for first year of asylum), and individuals who have pending adjustment of status cases.  Thus, it is important to remember several things about an EAD.

First, it is a List A document, if it has a photograph on it. Thus, one should not ask for a driver's license or Social Security card to accompany the EAD card.  Second, in Section 1, the employee must list their A number and expiration date of the EAD next to the box for “Alien authorized to work.”  Third, EADs expire within two years of the issuance.  Thus, employers should have a tickler system to remind employees, at least 90 days before an EAD’s expiration, of their need to renew their work authorization or provide other documentation concerning their work authorization. (Remember, employees who received EADs during their adjustment of status process will likely have a permanent resident card and can provide that or a driver's license and social security card or other appropriate documentation.)

____________________

*Bruce E. Buchanan is an attorney at the Nashville Office of Siskind Susser, P.C., where he represents individuals and employers in all aspects of immigration law as well as employment/labor law. Mr. Buchanan is past chair of the Tennessee Bar Association's Immigration Law Section. He is a blogger for ILW.com (http://blogs.ilw.com/immigrationcompliance/) and E-Verify and I-9 News (http://everifyandi9news.com) on topics of employer immigration compliance. He may be reached at bbuchanan@visalaw.com or (615) 345-0266.

By: Joshua J. Sudbury*

Not to be outdone by the recent flurry of activity by the NLRB, the Equal Employment Opportunity Commission (EEOC) made two bold statements of its own relating to the protection of transgendered individuals and employers’ use of criminal background checks.  While not as publicized as the actions of its sister federal agency, these rulings are sure to have an impact in the world of employment law in the years to come. 

Transgender Individuals

On April 20, 2012, the EEOC stated, under Title VII, employers may not discriminate against transgender individuals because of an individual’s transgender status.  The ruling came in response to a charge of discrimination filed by Mia Macy against the Bureau of Alcohol, Tobacco, Firearms and Explosives (“the Bureau”), arising out of Macy’s failed bid for a position with the Bureau. 

According to Macy, a police detective, she initially interviewed for the position by telephone while still presenting as a male.  Macy alleged she was promised a position with the Bureau after the telephone interview, provided her background check was clean.  However, after Macy revealed to the Bureau that she was in the process of transitioning from male to female, the Bureau allegedly notified Macy the position she sought had been filled.  Based on the Bureau’s alleged about-face, Macy filed a charge of discrimination, alleging the Bureau had discriminated against her because of her sex and engaged in “sex stereotyping.”  When the Bureau rejected her claim, Macy appealed to the EEOC.

On appeal, the EEOC sided with Macy.  Specifically, the EEOC stated “claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII’s sex discrimination prohibition.”  The EEOC noted that courts have long read Title VII to prohibit employers from discriminating against an individual because he or she does not conform to cultural and social aspects associated with his or her biological sex.  As a result, the EEOC found that discriminating against a person because he or she is transgender is discriminating against that person because of his or her sex, an act expressly prohibited by Title VII.  The EEOC went on to explain that Macy could establish a case of discrimination by proving she was denied the position either because her employer believed a man should appear as a man, i.e., wear the clothing typically worn by males, or because her employer did not want a woman in the position.  In light of its ruling, the EEOC noted both scenarios would amount to unlawful sex discrimination under Title VII.

Criminal Background Checks

Five days later, on April 25, 2012, the EEOC issued new enforcement guidance regarding employer criminal background check policies.  While not a drastic change from the EEOC’s original guidance issued in 1987, the new guidance makes clear the EEOC presumption that blanket policies excluding applicants on the basis of prior convictions have a disparately negative impact on minority job applicants, as studies show African-Americans and Hispanics are arrested at rates of two-to-three times higher than the non-minority population.

To overcome this presumption, an employer must usually be able to show its use of a criminal background check is tied to a valid business necessity.  The new enforcement guidance points to three factors an employer must consider to demonstrate business necessity:

1. The nature and gravity of the offense or offenses;
2. How much time has passed since the conviction and/or completion of the sentence; and
3. The nature of the job held or sought.

In addition, the new guidance points out that while an employer can assert compliance with Federal law in conflict with Title VII as a valid defense to a discrimination claim, compliance with conflicting state law will not be considered a valid defense if the law requires or permits an act which would be an unlawful employment practice under Title VII.

The EEOC’s new guidance also pushes for employers to engage in individualized assessments of applicants’ or employees’ criminal histories when making employment decisions.  According to the EEOC, this practice includes informing an individual that he may be excluded because of past criminal conduct, providing the individual with an opportunity to demonstrate he should not be excluded on the basis of his prior conviction, and considering whether the individual’s additional information shows the policy, as applied, is neither job-related nor consistent with business necessity.  Although the EEOC states that individualized assessments are not required in every case, the EEOC nevertheless emphasizes they can “help employers avoid Title VII liability.”

Lastly, the new guidance addresses the differences between an employer’s use of arrest and conviction records in employment decisions, stating the fact that a current or prospective employee has been arrested does not establish that criminal conduct has occurred.  As a result, the new guidance discourages employers from taking adverse employment actions based on an individual’s arrest record alone.  However, a record of an arrest may trigger an inquiry by the employer as to whether the conduct underlying the arrest renders the current or prospective employee unfit for the position in question, thereby justifying an adverse employment action.  In contrast, a record of a conviction generally serves as sufficient evidence that the person has engaged in the alleged conduct, although the EEOC encourages employers to refrain from inquiring into criminal convictions until later in the job selection process, and to limit any questions to only those concerning convictions that are related to the position in question and consistent with business necessity.

As a result of the EEOC’s new guidance, employers would be well served to eliminate any policies or practices currently in place which eliminate employees or applicants based merely on the existence of a criminal record.  Employers should develop narrowly-tailored policies and procedures for screening applicants and employees for criminal conduct and reduce these to writing.  In addition, employers should ensure all front line supervisors, managers and hiring officials are properly trained regarding how to avoid discrimination in employment decisions including avoiding discriminatory inquiries which are neither job related nor consistent with the necessities of the position sought.  Finally, employers should ensure any information obtained regarding an individual’s criminal background is kept confidential.

___________________________

*Joshua J. Sudbury is an associate in the Nashville office of Ford & Harrison, LLP.  Mr. Sudbury has represented clients in various industries before state and federal courts and administrative agencies against employment claims brought pursuant to Title VII, ADA, ADEA and FLSA. He also regularly counsels employers regarding labor and employment issues.  He can be reached at jsudbury@fordharrison.com or at (615) 574-6700.

By Kathleen Pohlid*

In a 5 to 4 vote, the Supreme Court, in Christopher v. SmithKline Beecham Corporation, 567 U.S.  --- (June 18, 2012), effectively resolved a dispute involving the healthcare industry for which there have been split decisions among federal circuits.  I’m not referring to the Affordable Care Act, but to the issue as to whether pharmaceutical sales representatives (or pharma sales reps) qualify for the outside sales representative exemption under the Fair Labor Standards Act. 

Justice Alito, writing for the majority, concluded the pharmaceutical sales representatives qualify as “outside salesmen” within the meaning of § 213(a)(1) of the FLSA and the Department of Labor (DOL) regulations, 29 C.F.R. § 541.500 et seq.  This decision upheld both the District Court for the District of Arizona decision, and the Ninth Circuit Court of Appeals decision. The majority rejected DOL’s arguments, submitted in its amicus briefs, that the exemption requires “a consummated transaction directly involving the employee for whom the exemption is sought.”  The Court’s decision also effectively overrules In re Novartis Wage and Hour Litigation, 611 F. 3d 141 (2nd Cir. 2010), holding that the exemption did not apply.  

The core of the dispute centered on the fact that pharmaceutical sales representatives (or detailers) are prohibited under federal law from dispensing prescription drugs.  In 1951, Congress amended the Food, Drug, and Cosmetic Act, requiring prescription drugs to be dispensed only upon a physician prescription.  In the decades following that amendment, the pharmaceutical industry has employed detailers to contact physicians, provide them with product information, and seek their nonbinding commitment to prescribe their drugs to patients. 

In order to qualify for the outside sales exemption under the FLSA, the employee’s primary duty must either be in making “sales,” or obtaining orders or contracts for services, or for the use of facilities for which consideration will be paid by the client or customer.  Additionally, the employee must be “customarily and regularly engaged away from the employer’s place or places of business.”  Because petitioners did not consummate any sales, they, along with the DOL, contended they did not fall within the exemption and therefore, were entitled to overtime pay.

Section 203(k) of the FLSA defines “sale” to “include any sale, exchange, contract to sell, consignment for sale, shipment for sale, or other disposition.” Since the FLSA and DOL regulations define “sale” to include consignment, which does not involve any transfer of title, the Court held such a requirement could not be imposed as a necessary condition for the exemption to apply.  The Court also reasoned that Congress specifically included “other disposition” within the definition in order to define “sale in a broad manner” as an “attempt to accommodate industry-by-industry variations in selling commodities,” which would include the pharmaceutical industry.     

The Court also found a lack of “fair notice” with DOL’s interpretation and its lack of prior enforcement with respect to this exemption within the pharmaceutical industry to be suspect.  It noted petitioners – Michael Christopher and Frank Buchanan – were well paid, earning over $72,000 and $76,000, respectively, during their employment from 2003 to 2007.  Since the nationwide gross pay median for pharmaceutical sales representatives exceeds $90,000, the financial stakes of potential overtime were significant for this industry.  The Court expressed its reluctance to “impose potentially massive liability” based upon DOL regulations which it found to be “ambiguous.”

Justice Alito also emphasized that until 2009 when DOL submitted its interpretation in amicus briefs, “the pharmaceutical industry had little reason to suspect that its longstanding practice of treating detailers as exempt transgressed the FLSA.”  Furthermore, since DOL had never “initiated any enforcement actions with respect to detailers or otherwise suggested it thought the industry was acting unlawfully,” the majority concluded, “the more plausible hypothesis is that [DOL] did not think the industry’s practice was unlawful.”

In his dissent, Justice Beyer also declined to give the DOL interpretation “any especially favorable weight,” and focused on the regulations to conclude, “a detailer’s primary duty is not that of ‘making sales’ or the equivalent.”

Although this decision is significant for its resolution of the exemption for pharmaceutical sales representatives, its reasoning and arguments may be useful for counsel to consider in FLSA matters involving employees in other industries who engage in consignment sales or “other distribution” sales of products. 

___________________

*Kathleen Pohlid is an attorney practicing with DHPM, PC – Law Firm in Nashville.She provides legal counsel and litigation services in employment, governmental compliance, Americans with Disabilities Act (discrimination and accommodation) and Occupational Safety and Health to a variety of businesses in the construction, health care, transportation, and service industries.  Mrs. Pohlid can be reached at kpohlid@dhpmlaw.com or 615.425.3702.

I hope everyone enjoys the latest newsletter from the TBA Labor and Employment Section.  I want to thank this issue's authors for contributing their valuable insight into legal happenings – Kathleen Pohlid, Joshua Sudberry, Mark Travis (a regular contributor), and myself. If you have an article or idea, I urge you to e-mail me at bbuchanan@visalaw.com or call me at 615-345-0266. (Note my new email address and phone number as I have joined Siskind Susser P.C.) I especially urge young attorneys to write an article as it is an opportunity to be published and known in legal circles for a particular expertise.

Bruce Buchanan

By Terrence L. Olsen*

In the Supreme Court’s opinion, Holder v. Martinez (May 21, 2012),  the Court settled the issue of imputation in the Cancellation of Removal process by demonstrating a deferential stance to decisions made by the Board of Immigration Appeals (“BIA”). 

The Court focused on the BIA’s application of 8 U.S.C. §1229b(a)--“Cancellation of removal for certain permanent residents.” Included in the provision are three requirements that must be met for the Attorney General to cancel removal.  The Attorney General can cancel removal if the alien “(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.” If these three requirements are met, an alien can ask for cancellation of removal from the Attorney General. 

The Court addressed the first two requirements in analyzing the BIA’s decisions in the Matters of Carlos Martinez Gutierrez and Damien Sawyers.  Carlos Martinez Gutierrez entered the country illegally at age 5 with his family.  His father became a lawful permanent resident two years later.  Carlos obtained lawful permanent resident status in 2003.  In 2005, Carlos was apprehended for smuggling undocumented aliens across the border and sought cancellation of removal under 8 U.S.C. 1229b(a).  In his case, he did not satisfy 8 U.S.C. §1229b(a)(1) or (2), but argued that his father’s continuous lawful permanent residence in the United States should be imputed in determining his ability to meet these statutory requirements. 

Damien Sawyers was lawfully admitted as a lawful permanent resident in October 1995, and was convicted of a drug offense in August 2002.  When he was admitted, his mother had already been in the United States continuously for 6 years.  Sawyers was found ineligible for cancellation of removal because he was a few months shy of the seven-year continuous residence requirement (8 U.S.C. §1229b(a)(2)).  The BIA rejected imputation of the mother’s time as a lawful permanent resident in its review of the statute. 

The respondents argued the statute can be reasonably interpreted to allow for imputation based on the policy of considering children under the custody of their parents.  The respondents also asserted the statute is silent on the permissibility of imputation.  The idea of imputation fits into the cancellation of removal context, according to the respondents, because of the policy of providing relief to those individuals with strong family ties to the United States.  An additional aspect of their argument is that the decisions of parents are already imputed onto children and upheld under the law, so imputing years of residence of a parent is a logical interpretation of this statute.

The government argued that allowing imputation is “contrary to the statute’s plain language, its legislative history, and the Board’s authoritative interpretation – all of which require that ‘the alien’ personally satisfy the statute’s requirements.”[i]  The plain language of the statute does not expressly disallow imputation, but it does not mention any other individuals under consideration other than the alien seeking cancellation of removal.  The government argued that even though Congress may have expressed a strong policy to protect and preserve families, this policy is not mentioned in 8 U.S.C. 1229b(a) and does not apply in the context of cancellation of removal. 

The Court ultimately narrowed the arguments of both sides and “consider[ed] whether the Board of Immigration Appeals…could reasonably conclude that an alien living in this country as a child must meet those requirements on his own. The Court held the BIA’s approach is based on a permissible construction of the statute.” The Court reasoned that even though imputation is not expressly disallowed in the statute, it is within the discretion of the BIA to make a reasonable interpretation of the statutes it applies – and here in these cases its interpretation was reasonable. 

This decision shows the BIA was following not only reasonableness, but also standard USCIS and Immigration Court policy.  The relief available to children brought to the U.S. by their foreign national parents is limited, and Holder v. Martinez demonstrates the Supreme Court’s deferential stance to agency interpretation of statutes especially in the political realm of immigration. In the future, some of these individuals may be entitled to Deferred Action (but not Martinez, who was convicted of a felony).