TBA Law Blog

Posted by: Christy Gibson on Jul 6, 2012

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).

[i] Petitioner’s Brief, p. 11-12.

*  Terrence L. Olsen is the founder of his own immigration law practice, Olsen Law Firm, in Chattanooga, Tennessee.  His practice areas include both employment immigration law and family immigration law.  Mr. Olsen is the past Chair of the TBA’s Immigration Law Section. He may be contacted at tolsen@tlolaw.com.  Mr. Olsen would like to thank his summer associate, Eliza Epps, who is a rising third year law student at The College of William & Mary Law School, Marshall-Wythe Law School, for her contributions to this article.