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High court: Parent’s years of residency not imputed to alien child

The Board of Immigration Appeals’ determination that a parent’s years of residency are not imputed to a child is a permissible construction of federal law, the U.S. Supreme Court ruled.

The first of two consolidated cases involved a Mexican national who entered the U.S. illegally at the age of 5 with his parents. His father subsequently obtained status as a legal permanent resident. The defendant also did so at age 19.

After being deemed removable due to a drug smuggling arrest, the defendant appealed under 8 U.S.C. §1229, which allows cancellation of removal where an alien has had permanent residence for five years or more or has resided in the country continuously for seven years after being admitted with any status.

Though the defendant didn’t meet either standard, he argued that his father’s permanent resident status could be imputed to him. An immigration judge agreed and granted cancellation of removal, but the Board of Immigration Appeals reversed, declining to impute the father’s legal residency to his status.

In the second case, a Jamaican-born legal permanent resident was convicted of drug offences and deemed removable. He denied he was removable, but sought cancellation of removal as an alternative. An immigration judge found that the conviction cut off his time of continuous residency and he did not qualify for cancellation.

The BIA affirmed.

In both cases the 9th Circuit remanded for reconsideration, and the Supreme Court agreed to hear the issue to determine if the BIA’s interpretation of the Immigration and Nationality Act regarding imputing time was permissible.

In a unanimous decision, the Court ruled that it was.

Writing for the Court, Justice Elena Kagan noted that “the 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.”

The BIA decisions read “like a multitude of agency interpretations – not the best example, but far from the worst – to which we and other courts have routinely deferred. We see no reason not to do so here,” Kagan wrote.

U.S. Supreme Court. Holder v. Gutierrez and Holder v. Sawyers, Nos. 10-1542 and 10-1543.


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