Julie Kruger is an Attorney and Partner at Richards & Kruger, with a practice limited to Immigration Law. She is admitted to practice in New York State, and is a member of the American Immigration Lawyers Association, New York State Bar Association, and Erie County Bar Association.

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Friday, May 25, 2012

Supreme Court Issues Decision on Cancellation of Removal

This week, the United States Supreme Court issued its decision in Holder v. Martinez Gutierrez, which considered the issue of whether a parent's years of continuous residence or LPR status may be imputed to his or her child for cancellation of removal purposes.  Cancellation of removal is a form of relief eligible to aliens in removal proceedings who have been lawfully admitted for permanent residence for not less than five years, have resided in the United States continuously for seven years after having been admitted in any status, and have not been convicted of any aggravated felony.

This case arose out of two consolidated cases from the Ninth Circuit. In the named case, Carlos Martinez Gutierrez's family brought him illegally to this country in 1989, when he was five years old. His father was admitted as an LPR two years later, but he was not admitted as an LPR until 2003. Two years after his admission, he was convicted of alien smuggling, and placed into removal proceedings. He sought cancellation of removal, even though he had not been admitted as an LPR for five years, nor did he have seven years of continuous residence after having been admitted.  The Immigration Judge granted cancellation, imputing Martinez Gutierrez's father's immigration history to him. The government appealed.

The Board of Immigration Appeals found that each alien must satisfy the requirements for cancellation of removal on his or her own.  On certiorari to the Ninth Circuit, the Supreme Court found that the BIA's intepretation was a reasonable construction of the statute, and reversed the judgement of the Ninth Circuit.   The Supreme Court found that imputation of the parent's status to the child is not required by the statute.  The Court further found that although imputation was allowed under the old cancellation of removal statute, Congress did not ratify that interpretation when it amended the statute and removed the term 'domicile.' The Court reasoned that although much of the INA focuses on family unity, that is not its exlcusive focus.  The Court examined the BIA's reasoning: that the BIA will impute matters involving an alien's state of mind but not objective conditions or characteristics, and that the BIA's 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." 

This decision limits the availability of cancellation of removal for many aliens who were brought to this illegally country by their parents, through no fault of their own.  It means that some aliens will be removed to countries they may not remember, where they may not speak they language, may not have any relatives or support system, and may not have any way to support themelves.  It means that some properties may be vacated, and some families may be torn apart.

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