FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
JOSE LUIS MERCADO-ZAZUETA, Petitioner, No. 07-71428 v. Agency No. A 75-504-958 ERIC H. HOLDER JR., Attorney General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted December 8, 2008—Pasadena, California
Filed September 8, 2009
Before: Jerome Farris, Susan P. Graber,* and Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge Wardlaw; Concurrence by Judge Graber
*Judge Susan P. Graber was drawn to replace Judge William W Schwarzer pursuant to General Order 3.2(g). Judge Graber has read the briefs, reviewed the record, and listened to the recording of oral argument held on December 8, 2008.
12595 MERCADO-ZAZUETA v. HOLDER 12599
COUNSEL
Randy J. Tunac, Allen & Tunac, PLLC, Phoenix, Arizona, for the petitioner.
Charles E. Canter, Office of Immigration Litigation, U.S. Department of Justice, Civil Division, Washington, D.C., for the respondent.
OPINION
WARDLAW, Circuit Judge:
We must decide whether our decision in Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir. 2005), compels the conclu- sion that a parent’s status as an alien lawfully admitted for permanent residence may be imputed to an unemancipated minor child residing with that parent, for purposes of satisfy- ing the five-year permanent residence requirement for cancel- lation of removal under section 240A(a)(1) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1229b(a)(1). Because the rationale and holding of Cuevas- Gaspar apply equally to the five-year permanent residence and the seven-year continuous residence requirements, we conclude that it does.
I. FACTUAL AND PROCEDURAL BACKGROUND
Jose Luis Mercado-Zazueta (“Mercado”), a native and citi- zen of Mexico, entered the United States as a visitor in 1992, 12600 MERCADO-ZAZUETA v. HOLDER at the age of seven. With the exception of a brief 2005 vaca- tion, Mercado has remained in the country ever since. In 1992, his mother married Ramon Mercado Cuevas (“Ramon”), who had been a lawful permanent resident of the United States since 1983. Ramon legally adopted Mercado in 1998, when he was thirteen years old. Mercado obtained inde- pendent lawful permanent resident status in 2002, at the age of seventeen, and has three siblings: a U.S. citizen brother, a U.S. citizen sister, and a lawful permanent resident sister.
In 2006, Mercado pled guilty to one count of aggravated assault in the Superior Court of Arizona. See Ariz. Rev. Stat. § 13-1204. The United States Department of Homeland Security (“DHS”) initiated removal proceedings against him shortly afterward. Mercado conceded removability under sec- tion 237 of the INA, 8 U.S.C. § 1227(a)(2)(A)(i)(I), as an alien “convicted of a crime involving moral turpitude commit- ted within five years . . . after the date of admission,” but applied for cancellation of removal under INA § 240(a), 8 U.S.C. § 1229b(a).1 The immigration judge pretermitted the application, finding Mercado ineligible for cancellation and ordering his removal to Mexico.
Mercado timely appealed to the Board of Immigration Appeals (“BIA”). In an unpublished decision, the BIA declined to apply Cuevas-Gaspar to allow imputation for the five-year permanent residence requirement, and dismissed Mercado’s appeal. In re Mercado-Zazueta, A 75-504-958, 2007 WL 1195899 (BIA Mar. 29, 2007). Mercado filed a timely petition for review on April 13, 2007. 1 Title 8 U.S.C. § 1229b(a) provides for cancellation of removal for a permanent resident who “(1) has been an alien lawfully admitted for per- manent 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.” MERCADO-ZAZUETA v. HOLDER 12601 II. JURISDICTION AND STANDARD OF REVIEW
Under 8 U.S.C. § 1252(a)(2)(D), we have jurisdiction to review constitutional claims and questions of law involved in the otherwise discretionary decision to deny cancellation of removal. See Mota v. Mukasey, 543 F.3d 1165, 1167 (9th Cir. 2008). Although we review de novo questions of law, we defer to the BIA’s interpretation of immigration laws unless the interpretation is “clearly contrary to the plain and sensible meaning of the statute.” Id. (internal quotation marks omit- ted). We review the BIA’s denial of a motion to reopen for an abuse of discretion. Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102, 1106 (9th Cir. 2006). “An abuse of discretion will be found when the denial was arbitrary, irrational or contrary to law.” Oh v. Gonzales, 406 F.3d 611, 612 (9th Cir. 2005) (internal quotation marks omitted).
III. DISCUSSION
A. Mercado’s Eligibility for Cancellation of Removal
1. Imputation of Status, Intent, and State of Mind to Une- mancipated Minor Children
“[B]oth the BIA and this court repeatedly have held that a parent’s status, intent, or state of mind is imputed to the par- ent’s unemancipated minor child in many areas of immigra- tion law, including asylum, grounds of inadmissibility, and legal residency status.” Cuevas-Gaspar, 430 F.3d at 1024; see also, e.g., Vang v. INS, 146 F.3d 1114, 1116-17 (9th Cir. 1998) (imputing a parent’s “firm resettlement” under 8 C.F.R. § 1208.15 to a sixteen-year-old minor); Senica v. INS, 16 F.3d 1013, 1015-16 (9th Cir. 1994) (imputing a parent’s knowl- edge of ineligibility for admission to that parent’s minor chil- dren to deny their application for discretionary admission under 8 U.S.C. § 1182(k)); Matter of Huang, 19 I. & N. Dec. 749, 750 n.1 (BIA 1988) (“Abandonment of lawful permanent resident status of a parent is imputed to a minor child who is 12602 MERCADO-ZAZUETA v. HOLDER subject to the parent’s custody and control.” (citing Matter of Winkens, 15 I. & N. Dec. 451 (BIA 1975))). As we have recently explained, “[w]e have allowed imputation precisely because the minor either was legally incapable of satisfying one of these criteria or could not reasonably be expected to satisfy it independent of his parents.” Ramos Barrios v. Holder, No. 06-74983, 2009 WL 1813469, at *9 (9th Cir. June 26, 2009).2 On several occasions, we have confronted situations in which a parent would qualify for relief under sec- tion 240A(a) or its predecessor, section 212(c),3 while a child who at all times had been in the physical custody of that par- ent would not. In recognition of the fundamental concerns motivating this form of discretionary relief, we have consis- tently imputed a parent’s satisfaction of the provision’s status requirements to the unemancipated minor children in that par- ent’s custody.
a. Section 212(c) and Lepe-Guitron
[1] In Lepe-Guitron, we considered whether, “under section 212(c), a parent’s lawful unrelinquished domicile is imputed to his or her minor children.” 16 F.3d at 1022. Concluding that imputation was appropriate, we first distinguished our 2 In Ramos Barrios, we declined to impute a parent’s “physical pres- ence” for purposes of satisfying the requirement set forth in 8 C.F.R. § 1240.66(b)(2). See Ramos Barrios, 2009 WL 1813469, at *6-12. In declining to impute physical presence, we stressed that “the definition of ‘physical presence’ does not require a specific status, intent, or state of mind,” id. at *10 (internal quotation marks omitted), unlike the terms at issue in Lepe-Guitron v. INS, 16 F.3d 1021 (9th Cir. 1994), Cuevas- Gaspar, and our other imputation precedent, see Ramos Barrios, 2009 WL 1813469, at *9-11. 3 INA section 240A(a), 8 U.S.C. § 1229b(a), governs cancellation of removal for permanent residents. The provision was enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, § 304(b), 110 Stat. 3009-597 (Sept. 30, 1996), to replace and modify a similar form of relief previously available under INA section 212(c), 8 U.S.C. § 1182(c) (repealed 1996). See also INS v. St. Cyr, 533 U.S. 289, 297 (2001). MERCADO-ZAZUETA v. HOLDER 12603 holding in Castillo-Felix that “ ‘to be eligible for [section 212(c)] relief, aliens must accumulate seven years of lawful unrelinquished domicile after their admission for permanent residence.’ ” Id. at 1024 (quoting Castillo-Felix v. INS, 601 F.2d 459, 467 (9th Cir. 1979)). In light of “crucial differ- ences” between Castillo-Felix, who had entered the United States illegally and acquired permanent resident status only after marrying, and Lepe-Guitron, who had entered legally with his parents and was “always legally within the country,” but nevertheless “acquired permanent resident status . . . many years after his parents achieved it,” we concluded that Castillo-Felix did not foreclose the possibility of imputation. Id. On the contrary, we found a “number of persuasive rea- sons to hold that a child’s ‘lawful unrelinquished domicile’ under section 212(c) is that of his or her parents.” Id.
First, we observed that the “position espoused by the gov- ernment would subvert the fundamental policies animating section 212(c).” Id. Severing the “bonds between parents and their children who had resided legally in the United States for the better part of their lives” would frustrate the section’s “just and humane goal of providing relief to those for whom deportation would result in peculiar or unusual hardship.” Id. at 1024-25 (citations and internal quotation marks omitted). Thus, “section 212(c)’s core policy concerns would be directly frustrated by the government’s proposal to ignore the parent’s domicile in determining that of the child.” Id. at 1025. The existence of other “sections of the INA giving a high priority to the relation between permanent resident par- ents and their children” lent strength to this analysis.4 Id. 4 We explained the high priority given to alien children in the context of visa preferences and waiver: Sections 1152 and 1153, which allocate the annual quota of immigrant visas, provide a preference for the alien children of United States residents and citizens. 8 U.S.C. §§ 1152(a)(4), 1153(a)(1) & (2). In considering applications for permanent resi- dent status, a child residing outside the United States is given the 12604 MERCADO-ZAZUETA v. HOLDER Second, Congress’s use of the term “domicile” reinforced the imputation of this form of status, because children are, “legally speaking, incapable of forming the necessary intent to remain indefinitely in a particular place,” id., and thus can- not determine their own domicile, id. at 1025-26. We there- fore held that “parents’ ‘lawful unrelinquished domicile’ should be imputed to their minor children under section 212(c).” Id. at 1026 (quoting 8 U.S.C. § 1182(c)). The Second and Third Circuits, the only other circuits to consider this issue before IIRIRA repealed section 212(c), reached the same conclusion, imputing a parent’s accumulation of lawful unrelinquished domicile to that parent’s minor children. See Rosario v. INS, 962 F.2d 220, 222-25 (2d Cir. 1992); Morel v. INS, 90 F.3d 833, 840-42 (3d Cir. 1996), vacated on other grounds, 144 F.3d 248 (3d Cir. 1998).
b. Section 240A(a) and Cuevas-Gaspar
[2] We first considered the possibility of imputation under section 240A(a) in Cuevas-Gaspar. See 430 F.3d at 1021-29. Facing removal due to a 2002 conviction for a crime involv- ing moral turpitude, Cuevas-Gaspar satisfied section 240A(a)(1)’s five-year permanent residence requirement.
same priority date and preference category as that of his or her parents. [8 C.F.R. § 1245.1(e)(vi)(B)(1)]. The Act even provides a waiver of excludability for certain immigrants who have helped their alien children enter the United States illegally. 8 U.S.C. § 1182(a)(6)(E)(ii) (family reunification waiver). Lepe-Guitron, 16 F.3d at 1025; see also Solis-Espinoza v. Gonzales, 401 F.3d 1090, 1094 (9th Cir. 2005) (“The [INA] was intended to keep fami- lies together. It should be construed in favor of family units and the accep- tance of responsibility by family members.”); H.R. Rep. No. 85-1199, pt. 2 (1957), reprinted in 1957 U.S.C.C.A.N. 2016, 2020 (stating that the “legislative history of the [INA] clearly indicates that the Congress intended to provide for a liberal treatment of children and was concerned with the problem of keeping families of United States citizens and immi- grants united”). MERCADO-ZAZUETA v. HOLDER 12605 However, the IJ found him ineligible for cancellation of removal because he had not satisfied section 240A(a)(2)’s seven-year continuous residence requirement, although he had lived in the United States since 1985, when he was one year old. Id. at 1016-17; 8 U.S.C. § 1229b(a)(1), (2). The BIA affirmed in a reasoned opinion, rejecting Cuevas-Gaspar’s argument that Lepe-Guitron allowed the imputation of his mother’s continuous residence as a permanent resident to sat- isfy the seven-year requirement. Cuevas-Gaspar, 430 F.3d at 1017, 1021.
[3] Because the BIA interpreted section 240A(a) in its opinion, we applied Chevron deference in our review, asking “(1) whether ‘the statute is silent or ambiguous with respect to the specific issue,’ and if so (2) whether the agency’s inter- pretation is based on a reasonable, permissible construction of the statute.” Cuevas-Gaspar, 430 F.3d at 1021 (quoting Chev- ron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984)). After concluding that section 240A(a) is silent regarding imputation, id. at 1022, we took up the “tools of statutory construction” to assess “whether the BIA’s inter- pretation of § 1229b(a) as being unamenable to imputation is a reasonable one,” id. at 1024. Examining Lepe-Guitron, the legislative history of section 240A(a), and the statutory frame- work of the INA, we concluded that the BIA’s interpretation was unreasonable, see id. at 1024-29, and held that “for pur- poses of satisfying the seven-years of continuous residence ‘after having been admitted in any status’ required for cancel- lation of removal under 8 U.S.C. § 1229b(a), a parent’s admission for permanent resident status is imputed to the par- ent’s unemancipated minor children residing with the parent,” id. at 1029.
2. The Statutory Framework and Congressional Intent
Before its repeal, section 212(c) provided that “[a]liens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of depor- 12606 MERCADO-ZAZUETA v. HOLDER tation, and who are returning to a lawful unrelinquished domi- cile of seven consecutive years, may be admitted in the discretion of the Attorney General.” 8 U.S.C. § 1182(c) (repealed 1996).5
In applying section 212(c), the courts of appeals developed conflicting interpretations of its requirement that permanent residents demonstrate “a lawful unrelinquished domicile of seven consecutive years.” Id. Our circuit and the Fourth Cir- cuit followed the BIA’s longstanding interpretation, restrict- ing the accumulation of “lawful unrelinquished domicile” to immigrants who had been admitted for permanent residence. See Castillo-Felix, 601 F.2d at 467; Chiravacharadhikul v. INS, 645 F.2d 248, 249-51 (4th Cir. 1981); Matter of S., 5 I. & N. Dec. 116, 117-18 (BIA 1953). The Second, Third, and Seventh Circuits disagreed, concluding that the domicile requirement could be satisfied by lawful domicile prior to admission as a lawful permanent resident, so long as the immigrant was also eventually admitted for permanent resi- dence. See Lok v. INS, 548 F.2d 37, 39-41 (2d Cir. 1977); Morel, 90 F.3d at 837-40; Castellon-Contreras v. INS, 45 F.3d 149, 152-54 (7th Cir. 1995). The Fifth, Tenth, Eleventh, and D.C. Circuits discussed the conflicting interpretations, but did not decide the issue. See Madrid-Tavarez v. INS, 999 F.2d 111, 112-13 (5th Cir. 1993); Onwuneme v. INS, 67 F.3d 273, 274 n.1 (10th Cir. 1995); Melian v. INS, 987 F.2d 1521, 1523-25 (11th Cir. 1993); Anwo v. INS, 607 F.2d 435, 436-38 (D.C. Cir. 1979).
The legislative history confirms that by enacting IIRIRA, Congress intended to address, among other things, the cir- cuits’ varying interpretations of section 212(c). In 1995, the Senate had considered a predecessor bill to IIRIRA entitled 5 Although section 212(c) “applies by its terms only to exclusion pro- ceedings under subsection (a) of § 1182, judicial decisions . . . extended its reach to deportation proceedings.” Lepe-Guitron, 16 F.3d at 1023; see also St. Cyr, 533 U.S. at 294-97. MERCADO-ZAZUETA v. HOLDER 12607 the Immigration Enforcement Improvements Act, S. 754, 104th Cong. (1995). See 141 Cong. Rec. S6082-04, S6092 (May 3, 1995). In Title III, section 309(b)(1), the bill set forth a cancellation of removal provision with the same basic requirements as section 240A(a): five years of permanent resi- dence and seven years of continuous residence.6 In a section- by-section analysis of the bill, the U.S. Department of Justice stated that section 309(b) “would clarify an area of the law regarding the cutoff periods for these benefits that have given rise to significant litigation and different rules being applied in different judicial circuits.” 141 Cong. Rec. at S6104.
[4] Section 240A(a) resolved the section 212(c) circuit split with the same compromise that had been proposed in the Immigration Enforcement Improvements Act, requiring at least five years of residence after being “lawfully admitted for permanent residence” and seven years of continuous resi- dence “after having been admitted in any status.” 8 U.S.C. § 1229b(a)(1), (2). It is thus apparent that, in enacting section 240A(a), Congress “intended to clear up a longstanding dis- agreement between the various courts of appeals and the BIA regarding the type of status necessary to qualify for relief under former § 212(c).” Cuevas-Gaspar, 430 F.3d at 1027; see also Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1016 (9th Cir. 2006) (“Ultimately, Congress designed the dual requirement of a five-year legal permanent residency and 6 Section 309(b) provided, in relevant part: The Attorney General may cancel deportation in the case of an alien who is deportable from the United States and: (1) is and has been a lawful permanent resident for at least 5 years who has resided in the United States continuously for 7 years after being lawfully admitted and has not been convicted of an aggravated felony or felonies for which the alien has been sen- tenced, in the aggregate, to a term of imprisonment of at least 5 years. 141 Cong. Rec. at S6098. The similarity between this provision and sec- tion 240A(a) is readily apparent. 12608 MERCADO-ZAZUETA v. HOLDER seven-year continuous residence in any status, § 1229b(a)(1)(2), to clear up prior confusion and to strike a balance between the conflicting interpretations . . . by count- ing a limited period of time spent in non-permanent status while still requiring at least five years of permanent resident status.” (internal quotation marks omitted)).7
[5] Moreover, it is equally apparent that Congress’s modifi- cations to section 212(c) were not intended to alter the avail- ability of imputation to the unemancipated minor children of parents who qualified for relief. The circuits did not split as to the underlying policy objectives motivating section 212(c), but simply over the type of status necessary to satisfy “lawful unrelinquished domicile.” Therefore, the fundamental goal underlying this discretionary remedy—”to provide relief from deportation for those who have lawfully formed strong ties to the United States,” Lepe-Guitron, 16 F.3d at 1025—was unaf- fected by this clarification of the requirements to secure that relief.
3. The BIA’s Decision in In re Mercado-Zazueta
[6] In denying Mercado’s direct appeal in an unpublished disposition, the BIA declined to apply our holding in Cuevas- Gaspar to the five-year residence requirement in section 240A(a)(1). In re Mercado-Zazueta, 2007 WL 1195899. In a 2007 published opinion, the BIA also expressed its disagree- ment with the reasoning of Cuevas-Gaspar. See In re Esco- bar, 24 I. & N. Dec. 231, 233-35 (BIA 2007).8 However, the 7 In enacting section 240A, Congress also intended to make cancellation of removal unavailable to lawful permanent residents who had been con- victed of aggravated felonies. See 8 U.S.C. § 1229b(a)(3); Cuevas-Gaspar, 430 F.3d at 1027 (citing St. Cyr, 533 U.S. at 297). However, this change sheds no further light on Congress’s intent regarding the other require- ments of section 240A(a). 8 Because the BIA’s published, precedential decisions warrant greater deference, and because the two decisions rely on the same reasoning to MERCADO-ZAZUETA v. HOLDER 12609 holding, reasoning, and logic of Cuevas-Gaspar apply equally to the resident status requirements of both section 240A(a)(1) and 240A(a)(2), and thus imputation of the custodial parent’s status to the minor is compelled.
a. Our Deference to the BIA
[7] It is “well-established that Congress delegated to the BIA the authority to promulgate rules, on behalf of the Attor- ney General, that carry the force of law ‘through a process of case-by-case adjudication.’ ” Garcia-Quintero, 455 F.3d at 1012 (quoting INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999)). However, “only ‘selected decisions of the Board ren- dered by a three-member panel or by the Board en banc may be designated to serve as precedents.’ ” Id. at 1013 (quoting 8 C.F.R. § 1003.1(g)). Although the BIA’s published, three- member decision in In re Escobar requires Chevron defer- ence, we have previously applied Chevron to find the BIA’s interpretation of section 240A(a) unreasonable. See Cuevas- Gaspar, 430 F.3d at 1021-29. Indeed, when scrutinized, the BIA’s decision in In re Escobar, as well as its decision in In re Mercado-Zazueta, cannot fairly be characterized as a “new” interpretation of section 240A(a), but is rather the same unreasonable interpretation we rejected in Cuevas-Gaspar.
b. The Requirement of “Lawful” Admission for Perma- nent Residence and the Question of Congressional Intent
[8] Contrary to the government’s assertion, Cuevas-Gaspar is controlling precedent for the imputation of “lawful perma-
reach their conclusions, we discuss both in our analysis, but focus primar- ily on In re Escobar. See Marmolejo-Campos v. Holder, 558 F.3d 903, 909 (9th Cir. 2009) (en banc) (“[W]e have held that the Board’s preceden- tial orders, which bind third parties, qualify for Chevron deference because they are made with a lawmaking pretense. We have not accorded Chevron deference to the Board’s unpublished decisions, however, because they do not bind future parties.” (internal quotation marks and citations omitted)). 12610 MERCADO-ZAZUETA v. HOLDER nent resident status from a parent to a child.” In re Escobar, 24 I. & N. Dec. at 234. Further, although “lawfully admitted for permanent residence” is a term of art, defined in 8 U.S.C. § 1101(a)(20) as “the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed,” it does not follow that allowing imputation for the five-year permanent residence requirement would “run contrary to the clear intent of Congress.” In re Escobar, 24 I. & N. Dec. at 234; cf. In re Mercado-Zazueta, 2007 WL 1195899.
First, review of the plain language of the statute demon- strates that both sections 212(c) and 240A(a)(1) use a variant of the word “lawful” in setting out their requirements. Section 212(c) required “lawful unrelinquished domicile,” and section 240A(a)(1) requires an applicant to have been “lawfully admitted for permanent residence.” Thus, the emphasis on section 240A(a)(1)’s requirement of being “lawfully admit- ted” is clearly misplaced. In re Escobar, 24 I. & N. Dec. at 234. If the change from requiring seven years of “domicile” to seven years of residence “after having been admitted” did not preclude imputation, see Cuevas-Gaspar, 430 F.3d at 1025-26, surely the change from “lawful unrelinquished domicile” to “lawfully admitted for permanent residence” should have no such effect. Indeed, when we decided Lepe- Guitron, we had already held that “ ‘to be eligible for [section 212(c)] relief, aliens must accumulate seven years of lawful unrelinquished domicile after their admission for permanent residence.’ ” 16 F.3d at 1024 (quoting Castillo-Felix, 601 F.2d at 467). Thus, by allowing imputation for minor children to satisfy the domicile requirement, Lepe-Guitron “necessar- ily held that a parent’s admission to permanent resident status is imputed to the child” for purposes of section 212(c) relief. Cuevas-Gaspar, 430 F.3d at 1026. Accordingly, although the status requirement in section 240A(a)(1) is distinct, the dis- tinction is not relevant, and we again conclude that the change in terminology is “not . . . so great as to be dispositive.” Id. MERCADO-ZAZUETA v. HOLDER 12611 Second, because Mercado actually has been admitted for permanent residence, it is beyond dispute that he has satisfied the substantive and procedural requirements of admission for permanent residence.9 He has failed to satisfy only the five- year component of this requirement, which was imposed to probe the duration of an alien’s lawful ties to the United States. See Cuevas-Gaspar, 430 F.3d at 1028-29.
[9] Similarly, the BIA’s decision in In re Escobar is flawed in two critical respects: The decision is factually inaccurate in implying that Escobar had not satisfied the mandated statutory and regulatory application process and the substantive eligi- bility requirements for admission. In re Escobar, 24 I. & N. Dec. at 234. The decision also erroneously suggests that imputing status for the sole purpose of assessing eligibility for cancellation of removal necessarily requires imputing in other contexts and with regard to other forms of relief. See id. at 234 n.4. The BIA incorrectly asserts that “if imputation of a parent’s lawful permanent residence would allow a minor alien to fulfill the requirements for cancellation of removal, the child would never have to become a lawful permanent res- ident in his own right.” Id. at 235. This is simply not the case. See also In re Mercado-Zazueta, 2007 WL 1195899 (“[I]f imputation is all that is needed, why would an alien ever need to be a lawful permanent resident in his own right? Moreover, why would an alien ever need an admission or period of United States residence or presence?”). The possibility of can- cellation arises only when removal proceedings have been ini- tiated. On the other hand, those who attain lawful permanent resident status acquire many more benefits than the one iso- lated avenue to relief from removal, including eligibility for employment, the right to live permanently in the United 9 The petitioner in In re Escobar, Kattia Guadalupe Escobar (“Escobar”), had also satisfied these requirements for admission. See 24 I. & N. Dec. at 231. We therefore do not consider the imputation of lawful permanent resident status to an unemancipated minor who has never been admitted for permanent residence. 12612 MERCADO-ZAZUETA v. HOLDER States, the ability to vote in state and local elections that do not require U.S. citizenship, the ability to travel freely within and without the United States, and the ability to pursue U.S. citizenship. Because imputing a parent’s status for purposes of cancellation would convey none of these other significant and desirable benefits, the BIA’s reasoning in In re Escobar and In re Mercado-Zazueta, that imputation for cancellation would obviate an immigrant’s desire for lawful permanent resident status, misapprehends the nature of that status.
Finally, the BIA mistakenly asserts that allowing imputa- tion under section 240A(a)(1) would be “inconsistent with the purpose of the [INA] and the intent of Congress when it amended the statute to add the relief of cancellation of removal for certain permanent residents.” In re Escobar, 24 I. & N. Dec. at 233. If section 240A(a)’s silence regarding imputation suggests anything, it suggests that Congress acqui- esced in the unanimous practice of the circuits to consider the issue, all of which had found imputation appropriate under section 212(c). Regardless, in light of the statutory scheme and legislative history of section 240A(a), allowing imputa- tion for both the five- and seven-year requirements would not “essentially destroy the distinct tests mandated by Congress when it amended the statute.” Id. at 234. On the contrary, the distinct tests were created to resolve a circuit split that did not concern imputation. See Cuevas-Gaspar, 430 F.3d at 1027. As discussed, section 240A(a) was only intended to clarify “the type of status necessary to qualify for relief.” Id. (empha- sis added). Therefore, unlike the “physical presence” at issue in Ramos Barrios, which does not include “an element of sta- tus, intent, or state of mind,” 2009 WL 1813469, at *9, the status requirements of section 212(c) and section 240A(a) are equally amenable to imputation.
[10] Moreover, even with imputation, the requirements of subsections 240A(a)(1) and (2) remain distinct, as all appli- cants for cancellation of removal as permanent residents are still required to demonstrate both five years spent as a lawful MERCADO-ZAZUETA v. HOLDER 12613 permanent resident and seven years of residence after admis- sion in any status.10 Applicants who have spent time in the United States as the unemancipated minor children of lawful permanent resident parents merely have an alternative mecha- nism to demonstrate that they satisfy these distinct requirements—a mechanism that is wholly consistent with, if not compelled by, the statutory scheme. See Cuevas-Gaspar, 430 F.3d at 1029 (noting the well-established “congressional policy of recognizing that presence in the United States of an extended length gives rise to such strong ties to the United States that removal would result in undue hardship”). Thus, allowing imputation to satisfy section 240A(a)(1)’s five-year requirement would not be contrary in any way to congressio- nal intent.
c. The BIA’s Consistent Willingness To Impute in Other Contexts
In In re Escobar, the BIA claimed that its prior decisions do “not support the automatic imputation of lawful permanent resident status from parent to child,” noting that the cases cited in Cuevas-Gaspar “all deal with aliens whose relatives abandoned their lawful permanent resident status and the resulting imputation of the abandonment of that status.” 24 I. & N. Dec. at 234 n.4. The BIA identifies two reasons why this distinction is relevant.
First, the BIA notes that imputing the abandonment of per- manent resident status is consistent with the “longstanding policy that a child cannot form the intent necessary to estab- lish his or her own domicile.” Id. This observation lacks rele- vance; it is a distinction without a difference. The argument appears to be that the abandonment of permanent resident sta- 10 For example, an unemancipated minor who spent seven years in the United States with parents who had not attained lawful permanent resident status might be able to satisfy the seven-year requirement through imputa- tion, but would not be able to satisfy the five-year requirement. 12614 MERCADO-ZAZUETA v. HOLDER tus requires intent, and therefore imputation is appropriate, whereas the acquisition of permanent resident status does not require intent, so imputation is not appropriate. But we know of no authority for the proposition that intent, standing alone, is the touchstone of imputation analysis. In Cuevas-Gaspar, we dealt with a more cogent version of this argument. See 430 F.3d at 1025. There, we rejected the assertion that the status of “admission” could not be imputed because, “unlike domi- cile, which depends on intent or capacity, ‘admission’ does not depend on either intent or capacity.” Id. Indeed, the BIA attempted to recycle this argument in In re Mercado-Zazueta, claiming that “unlike domicile, which depends on intent or capacity, admission does not depend on either the intent or the capacity of the minor, but rather on inspection and authoriza- tion by an immigration officer.” 2007 WL 1195899. As Cuevas-Gaspar suggests, it is unreasonable to impute the abandonment of permanent resident status while refusing to impute the acquisition of such status under section 240A(a). See 430 F.3d at 1025.
[11] Thus, while unemancipated minors may be technically capable of attaining lawful permanent resident status without their parents’ assistance, it is not reasonable to expect them to do so. The imputation of both domicile and permanent resi- dent status to minor children is appropriate, so far as cancella- tion of removal is concerned, “precisely because the minor either [is] legally incapable of satisfying one of these criteria or could not reasonably be expected to satisfy it independent of his parents.” Ramos Barrios, 2009 WL 1813469, at *9.
Second, the government’s insistence that “acquiring lawful permanent resident status, with the attendant eligibility requirements, is necessarily more complicated than abandon- ing such status,” In re Escobar, 24 I. & N. Dec. at 234 n.4, is similarly not probative. As noted, there is no dispute that both Escobar and Mercado satisfied the “attendant eligibility requirements” to acquire permanent resident status. Moreover, the fact that it may be more complicated to acquire permanent MERCADO-ZAZUETA v. HOLDER 12615 resident status than to abandon it does not provide any indica- tion as to whether imputation is more appropriate for one than the other. If there is any reasonable conclusion to be drawn from that fact, it is that the complications associated with acquiring permanent resident status favor imputation, as minor children are less equipped to deal with those complica- tions on their own.
Accordingly, the BIA’s explanation of its inconsistent imputation practices remains “ ‘so unclear or contradictory that we are left in doubt as to the reason for the change in direction.’ ” Marmolejo-Campos, 558 F.3d at 914 (quoting Morales-Izquierdo v. Gonzales, 486 F.3d 484, 493 (9th Cir. 2007) (en banc)). In light of this ill-explained and apparently arbitrary inconsistency, Cuevas-Gaspar’s interpretation of section 240A(a) continues to receive support from the obser- vation that the BIA “repeatedly [has] held that a parent’s sta- tus, intent, or state of mind is imputed to the parent’s unemancipated minor child in many areas of immigration law, including asylum, grounds of inadmissibility, and legal resi- dency status.” 430 F.3d at 1024.
d. The BIA’s Interpretation of Section 240A(a)(1) Is Unreasonable
We acknowledge that, at Chevron’s second step, “[d]eference to an agency’s interpretation is especially appro- priate in the immigration context where officials exercise especially sensitive political functions that implicate questions of foreign relations.” Morales-Izquierdo, 486 F.3d at 492 (internal quotation marks omitted). Further, “[a]t step two . . . our function is ‘not simply [to] impose [our] own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, . . . the question for the court is whether the agency’s answer is based on a permissi- ble construction of the statute.’ ” Id. at 492-93 (alteration in original) (quoting Chevron, 467 U.S. at 843). 12616 MERCADO-ZAZUETA v. HOLDER [12] With this framework in mind, Cuevas-Gaspar compels the conclusions that imputation under section 240A(a)(1) is appropriate and that a contrary interpretation of the statute is not permissible.11 While agencies retain discretion to fill ambiguous statutory gaps, it does not follow that an agency may repeatedly put forward an interpretation that we already have examined under Chevron and found unreasonable at its second step.
[13] Moreover, the BIA’s interpretation of the statute remains demonstrably contrary to the fundamental purposes motivating the discretionary relief Congress made available in section 240A(a). Mercado has spent almost his whole life within the United States. When Mercado was legally adopted at the age of thirteen, he easily could have adjusted his own status with the assistance of his parents. Not only is it absurd to penalize Mercado for his parents’ failure to assist him with the adjustment process, but it flies in the face of common sense to conclude that a lawful permanent resident such as Mercado, who has spent the vast majority of his life in this country, cannot be eligible for cancellation of removal, which is premised on the longstanding “congressional policy of rec- ognizing that presence in the United States of an extended length gives rise to such strong ties to the United States that removal would result in undue hardship.” Cuevas-Gaspar, 430 F.3d at 1029 (citing S. Rep. No. 1515, 81st Cong., 2d Sess. 383 (1950)).12 Further, if Mercado had never attained 11 It is noteworthy that at least one member of the BIA has also reached this conclusion, albeit in an unpublished decision. See In re Guerra, No. A77 988 500, 2007 WL 1129369 (BIA Feb. 13, 2007). We note also that the Third Circuit recently repudiated the logic and holding of Cuevas- Gaspar. See Augustin v. Attorney Gen., 520 F.3d 264 (3d Cir. 2008). We are nonetheless bound to follow our circuit precedent. 12 As Mercado’s mother put it, in a letter submitted to DHS along with Mercado’s application for cancellation of removal: [Mercado] has been raised here since he was a little boy, always attending school and trying to do everything that could help him MERCADO-ZAZUETA v. HOLDER 12617 lawful permanent resident status, his eligibility for cancella- tion of removal would have been governed by section 240A(b), under which he easily would have established that he had been “physically present in the United States for a con- tinuous period of not less than 10 years.” 8 U.S.C. § 1229b(b)(1)(A). Accordingly, we hold that, for purposes of satisfying the five years of lawful permanent residence required under INA section 240A(a)(1), 8 U.S.C. § 1229b(a)(1), a parent’s status as a lawful permanent resident is imputed to the unemancipated minor children residing with that parent.
e. Brand X and Duran Gonzales Do Not Alter Our Analysis at Chevron’s Second Step
The BIA recently relied on In re Escobar to deny imputa- tion for section 240A(a)(2)’s seven-year requirement within our circuit, directly conflicting with our holding in Cuevas- Gaspar. See Matter of Ramirez-Vargas, 24 I. & N. Dec. 599 (BIA 2008). In Matter of Ramirez-Vargas, the BIA applied the Supreme Court’s decision in National Cable & Telecom- munications Ass’n v. Brand X Internet Services, 545 U.S. 967
be successful in this country. His social life, professional life, personal life, everything about his life is based on this culture, on the American way of living. He has always been very intelligent and goal oriented striving to reach these goals. As soon as he graduated high school he went to college while also having a job. He almost attained his degree in Computer Aided Drafting since he only needed one semester to get his Associates Degree. He is a good boy, very noble and it saddens me to see him detained with his goals lost and his future about to be taken away from him. Even though he can be sent free and sent to another country, his goals, his life, his home, his everything is HERE. Taking that away from him is like taking away everything. The fundamental motivating purpose behind section 240A(a), as illumi- nated above, is to aid precisely those such as Mercado who have lawfully built their entire lives in this country. 12618 MERCADO-ZAZUETA v. HOLDER (2005) (“Brand X”),13 and our decision in Duran Gonzales v. DHS, 508 F.3d 1227 (9th Cir. 2007),14 to conclude that its subsequent interpretation of section 240A(a) in In re Escobar had undermined the precedential value of Cuevas-Gaspar. See Matter of Ramirez-Vargas, 24 I. & N. Dec. at 599-601. We disagree.
The BIA’s reliance on Brand X and Duran Gonzales in Matter of Ramirez-Vargas is misplaced. Most notably, in Brand X itself, in reaching the prior decision at issue, AT&T Corp. v. Portland, 216 F.3d 871 (9th Cir. 2000), our court had not even considered an agency interpretation of the Commu- nications Act, nor had we applied Chevron deference when we interpreted the statute. See id. at 876 (“We note at the out- set that the FCC has declined, both in its regulatory capacity and as amicus curiae, to address the issue before us. Thus, we are not presented with a case involving potential deference to an administrative agency’s statutory construction pursuant to the Chevron doctrine.”). Indeed, the FCC was not even a party in Portland. See Brand X, 545 U.S. at 980. Accordingly, when we authored the decision that the Supreme Court 13 In Brand X, the Supreme Court held that “[a] court’s prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its con- struction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.” 545 U.S. at 982. 14 In Duran Gonzales, we considered a conflict between our interpreta- tion of certain provisions of IIRIRA in Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004), and the BIA’s subsequent interpretation of the same provisions in In re Torres-Garcia, 23 I. & N. Dec. 866 (BIA 2006). Relying on Brand X, 545 U.S. at 980-82, we determined that so long as Perez-Gonzalez was “based, at least in part, on ambiguity in the applicable statutes,” our deference to the BIA’s interpretation was required. Duran Gonzales, 508 F.3d at 1236. After ascertaining that, “despite some lan- guage to the contrary, Perez-Gonzalez was based on a finding of statutory ambiguity that left room for agency discretion,” id. at 1237, we concluded we were not bound by Perez-Gonzalez but “must defer to In re Torres- Garcia if its interpretation of the governing statute is reasonable,” id. at 1239 (emphasis added). MERCADO-ZAZUETA v. HOLDER 12619 reversed in Brand X, we did not employ a deferential review of an agency interpretation at Chevron’s second step. See Brand X Internet Servs. v. FCC, 345 F.3d 1120, 1130-32 (9th Cir. 2003), rev’d, 545 U.S. 967 (2005). Rather, as the Supreme Court observed, we “declined to apply Chevron because [we] thought the Commission’s interpretation of the Communications Act [was] foreclosed by the conflicting con- struction of the Act [we] had adopted in Portland.” Brand X, 545 U.S. at 982.
Similarly, in Duran Gonzales, we observed that our previ- ous decision in Perez-Gonzalez had “clearly relied on the agency regulations to reconcile the inadmissibility provision with the special adjustment provision.” 508 F.3d at 1238. Thus, Perez-Gonzalez “did not ‘foreclose[ ] the agency’s interpretation’ of the statutory scheme, but rather relied on the regulations to both reject an informal agency interpretation of the inadmissibility provision and reach [its] holding.” Id. (quoting Brand X, 545 U.S. at 983). Accordingly, our conclu- sion in Duran Gonzales that the BIA’s new interpretation of these regulations was “clearly reasonable” did not directly contravene the Perez-Gonzalez analysis, which was premised on a different interpretation of the same underlying regula- tions. See id. at 1242; see also Perez-Gonzalez, 379 F.3d at 794 (“In the absence of a more complete agency elaboration of how its interpretation of § 212(a)(9) can be reconciled with its own regulations, we must defer to the regulations rather than to the informal guidance memorandum.”).
[14] In sum, neither Brand X nor Duran Gonzales suggests that an agency may resurrect a statutory interpretation that a circuit court has foreclosed by rejecting it as unreasonable at Chevron’s second step.15 As both Brand X and Duran Gon- 15 Indeed, the Brand X majority’s reasoning confirms this conclusion. After pronouncing its general holding that a “court’s prior judicial con- struction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision . . . follows from the unambiguous terms of the statute,” 545 U.S. at 982, the Court observed: 12620 MERCADO-ZAZUETA v. HOLDER zales acknowledged, under Chevron, an agency’s interpreta- tion of a statute it is charged with administering must be rea- sonable. See Brand X, 545 U.S. at 997-1000; Duran Gonzales, 508 F.3d at 1241-42. In contrast to the prior decisions at issue in Brand X and Duran Gonzales, the Cuevas-Gaspar panel considered and rejected the precise interpretation of section 240A(a) that the BIA precedentially resurrected in In re Esco- bar and extended in Matter of Ramirez-Vargas. Our review of the BIA’s published decision in In re Escobar, as well as its unpublished decision in In re Mercado-Zazueta, remains bound by the ongoing validity of our holding in Cuevas- Gaspar.
CONCLUSION
Viewing section 240A within the context of the INA, Cuevas-Gaspar compels the conclusion that the BIA’s inter- pretation of section 240A(a)(1) is unreasonable. It is perhaps worth noting that, in so holding, we do not guarantee that Mercado and others in his situation may remain in the United States. On the contrary, we merely grant access to the possi- bility of cancellation of removal, leaving the ultimate determi- nation to the sound discretion of the Attorney General.
PETITION GRANTED and REMANDED for further proceedings consistent with this opinion.
A contrary rule would produce anomalous results. It would mean that whether an agency’s interpretation of an ambiguous statute is entitled to Chevron deference would turn on the order in which the interpretations issue: If the court’s construction came first, its construction would prevail, whereas if the agency’s came first, the agency’s construction would command Chevron deference. Id. at 983. Thus, because the BIA interpreted section 240A(a) before we did, and this interpretation has already received Chevron deference, the concerns underlying Brand X are simply inapposite. MERCADO-ZAZUETA v. HOLDER 12621 GRABER, Circuit Judge, concurring:
I concur fully in Judge Wardlaw’s opinion. I write sepa- rately to express my concern with both the BIA’s current rule and our holding in Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir. 2005).
To qualify for cancellation of removal, a person must have had permanent resident status for five years, 8 U.S.C. § 1229b(a)(1), and must have had continuous residence under “any” legal immigration status for seven years, id. § 1229b(a)(2). The Board of Immigration Appeals (“BIA”) has interpreted those requirements strictly: A parent’s legal status cannot be imputed to a child.
The BIA’s rule is undeniably harsh. Its effect is to remove children who have lived in the United States for at least seven years and whose parents have had permanent resident status for at least five years. Moreover, the children may have arrived here at a very young age and have no ties to the desig- nated country of removal. The children may not speak the lan- guage, know anyone there, or have any connection other than the country name on their birth certificates. The BIA’s rule faults these children because their parents, for whatever rea- son, chose not to seek legal status for the children at the same time that they themselves sought legal status.
In Cuevas-Gaspar, 430 F.3d at 1021-29, we declined to afford the BIA’s interpretation of the seven-year continuous residence requirement deference under the second step of Chevron analysis because, in our view, the BIA’s interpreta- tion was unreasonable. In In re Escobar, 24 I. & N. Dec. 231, 235 (B.I.A. 2007), the BIA held that it would not “extend” our holding in Cuevas-Gaspar to the five-year permanent res- idence requirement. But, for present purposes, there is no rele- vant distinction between a parent’s status for the five-year permanent residence requirement and a parent’s status for the seven-year continuous residence requirement. For the reasons 12622 MERCADO-ZAZUETA v. HOLDER expressed in the opinion, Cuevas-Gaspar controls and we must conclude that the BIA’s interpretation is unreasonable.
Despite the harshness of the BIA’s current rule, and despite the equal or greater reasonableness of a less harsh rule, I think that, as a matter of statutory interpretation and Chevron defer- ence, Cuevas-Gaspar was wrongly decided. If not for Cuevas- Gaspar, I would conclude that, under the demanding standard of Chevron deference, the BIA’s interpretation is reasonable. I am not alone. See Cuevas-Gaspar, 430 F.3d at 1031-32 (Fernandez, J., dissenting); Augustin v. Attorney Gen., 520 F.3d 264, 269-72 (3d Cir. 2008) (disagreeing with Cuevas- Gaspar and holding to the contrary). Judge Fernandez’ dis- sent in Cuevas-Gaspar and the Third Circuit’s unanimous decision in Augustin aptly explain why the BIA’s interpreta- tion is reasonable when considering Chevron deference. That conclusion is particularly warranted because “judicial defer- ence to the Executive Branch is especially appropriate in the immigration context.” INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999); see also Chen v. Mukasey, 524 F.3d 1028, 1033 (9th Cir. 2008) (“Deference is especially appropriate in the context of immigration law, where national uniformity is par- amount.” (internal quotation marks omitted)).1
Were the question not already decided by Cuevas-Gaspar, then, I would feel constrained as a judge to defer to the BIA’s interpretation of the statute. Unless and until the BIA reverses course or Congress fills the gap in the immigration laws, we must defer to the agency’s expertise—my personal misgivings notwithstanding.
1 The BIA has stated that it “will . . . not follow [Cuevas-Gaspar] in cases arising outside the jurisdiction of the Ninth Circuit.” In re Escobar, 24 I. & N. Dec. at 235. Thus, its rule is uniform everywhere except the Ninth Circuit.