Friday, March 21, 2008

Augustin: Defer To BIA's Refusal To Impute Parent's US Residence

In Augustin v. Mukasey, No. 06-4744 (3d Cir. Mar. 20, 2008), the Third Circuit rejected a challenge to the BIA's view that a child cannot impute his father's many years of continuous residence in order to meet the requirement of seven years of continuous residence to seek cancellation of removal for legal permanent residents.

There are a few ways someone can avoid removal. One method is to obtain cancellation of removal for legal permanent residents, which requires seven years of continuous residence in the United States after being admitted into the US in any status. Keep in mind there are certain requirements (such as how the 7 years must accumulate before committing a crime that makes the person inadmissible, needs 5 years of LPR status, cannot be convicted of an aggravated felony, and could not have used this before).

The legal issue is whether the Third Circuit must defer to the BIA's view that a child may not impute his father's continuous residence. The INA defines residence as the place of general abode such as actual dwelling place regardless of the person's intent.

Under Chevron analysis, if Congress intended a certain view then the Third Circuit will adopt it regardless of what the BIA thinks. However, if Congress's intention is not clear, the Third Circuit will defer to the BIA's view so long as its view is a permissible construction of the statute.

This is not the first case to raise this issue. In 2005, the Ninth Circuit held that imputation of the residence requirement was required. Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir. 2005). Next, the BIA in this case rejected that rationale and said it was not possible. Next, the BIA in 2007 said in dicta that it did not like the imputation theory and would not follow it outside of the Ninth Circuit. Matter of Escobar, 24 I&N Dec. 231 (BIA 2007) (rejecting imputation for the requirement of 5 years of LPR status).

The Third Circuit reasoned that if the word is "domicile" then a line of cases makes clear a child can impute his parent's domicile. But the term residence is different from domicile and the BIA can say that it will refuse to impute residence. The Third Circuit concluded that Congress's goal of maintaining relationships between LPR parents and their children was not enough to make the BIA's view unreasonable. The Third Circuit left open that imputation might be required if the requirements turn in part on the child's intention, based on a line of cases regarding imputing the parent's intent to abandon LPR status. The problem in this case is that the requirements did not involve intention. Third, the Third Circuit concluded that the intent to offer relief was not so strong that the BIA's view would be unreasonable.

The Third Circuit tried hard to distinguish the case from Cuevas-Gaspar v. Gonzales, but it is debatable whether it really did so or whether there is a circuit split on the issue of imputing various types of characteristics from a child's parents.

Engy Abdelkader of Legal Services of New Jersey argued the case for Mr. Augustin and the decision was issued by visiting judge Louis H. Pollak on a panel with Judges Rendell and Chagares.

updated: Chuck Roth posted an excellent comment to the original blog posting. He points out that the Third Circuit may have incorrectly called an issue moot when it wasn't. The issue is whether the first crime problem was a conviction for immigration purposes. The Third Circuit said it was moot because the person was deportable anyway. But as Chuck comments, that seems to be incorrect -- it would make a critical difference. If the first crime problem was not a conviction, then the BIA should not have said the immigrant did not have 7 years of continuous residence as of the time of the first crime issue. Because the first crime issue would not have been the 2000 stolen property issue but instead a later crime problem more than 7 years after he came to the US (whether it was 2003 or 2005, it was more than 5 years after he came in 1995).

So it does seem like the Third Circuit made a mistake. It should have analyzed whether the first crime issue was a conviction for immigration purposes. If there is some other reason why the issue is moot, the Third Circuit should have said so. The reason it offered does not make sense. Either the Third Circuit apparently made a huge mistake or it misspoke and did not reveal the real reason the issue is moot. Maybe it can clarify this issue by issuing a correction to its opinion in the near future.


Anonymous Anonymous said...

Rex, I was surprised you didn't point out the 3d cir's error in finding no jurisdiction to consider whether the Petitioner's first offense rendered him removable. Yes, he would have still been removable under the firearms ground, but he would have been eligible for Cancellation if the 2000 offense didn't render him inadmissible. (And note that the Court raised it sua sponte, apparently without briefing by either side). And anyway, wasn't it really a mootness point, as opposed to jurisdiction? The Court clearly had jurisdiction per 1252(a)(2)(D) to decide the question of law...

Chuck Roth

4:53 PM  

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