Monday, May 21, 2012
Supremes Defer to BIA in Companion Cases
The Supreme Court today decided Holder v. Gutierrez and Holder v. Sawyers, which was previewed by Professor Jill Family in a link posted on ImmigrationProf before oral argument in the case. Justice Kagen wrote for a uninimous Court deferring to the Board of Immigration Appeals' construction of the cancellation of removal statute. Here are the basics about th edecision from the syllabus to the case.
The Immigration of Nationality Act, 8 U. S. C. § 1229b(a), authorizes the Attorney General to cancel the removal of an alien from the United States who, among other things, has held the status of a lawful permanent resident (LPR) for at least five years, § 1229b(a)(1), and has lived in the United States for atleast seven continuous years after a lawful admission, § 1229b(a)(2).
The companion cases concern whether the Board of Immigration Appeals (BIAor Board) should impute a parent’s years of continuous residence or LPR status to his or her child. That issue arises because a child may enter the country lawfully, or may gain LPR status, after one of his parents does—meaning that a parent may satisfy § 1229b(a)(1) or §1229b(a)(2), while his child, considered independently, does not.
In In re Escobar, 24 I. & N. Dec. 231, the BIA concluded that an alien must meet §1229b(a)’s requirements on his own. But the Ninth Circuit found the Board’s position unreasonable, holding that § 1229b(a)(1) and § 1229b(a)(2) require imputation. concluded that Martinez Gutierrez qualified for relief because of his father’s immigration history, even though Martinez Gutierrez could not satisfy § 1229b(a)(1) or § 1229b(a)(2) on his own. Relying on Escobar, the BIA reversed. The Ninth Circuit then granted Martinez Gutierrez’s petition for review and remanded the case to the Board for reconsideration in light of its contrary decisions.
Held: The BIA’s rejection of imputation is based on a permissible construction of § 1229b(a).
(a) The Board has required each alien seeking cancellation of removal to satisfy § 1229b(a)’s requirements on his own, without relyingon a parent’s years of continuous residence or immigration status.That position prevails if it is a reasonable construction of the statute,whether or not it is the only possible interpretation or even the one a court might think best. See e.g., Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843–844, and n. 11. The BIA’s approach satisfies this standard. The Board’s position is consistent with the statute’s text. Section 1229b(a) does not mention—much less require—imputation. Instead, it simply calls for “the alien” to meet the prerequisites for cancellation of removal. Respondents contend that this language does not foreclose imputation, but even if so,that is not enough to require the Board to adopt that policy.
(b) Neither does the statute’s history and context mandate imputation. Section 1229b(a) replaced former §212(c) of the Immigrationand Nationality Act (INA), which allowed the Attorney General to prevent the removal of an alien with LPR status who had maintained a “lawful unrelinquished domicile of seven consecutive years” in this country. Like § 1229b(a), § 212(c) was silent on imputation. But every Court of Appeals that confronted the question concluded that, in determining eligibility for § 212(c) relief, the Board should impute aparent’s years of domicile to his or her child. Based on this history,
(c) Respondents advance two additional arguments for why the Board’s position is not entitled to Chevron deference. First, they claim that the Board’s approach to § 1229b(a) is arbitrary because it isinconsistent with the Board’s acceptance of imputation under other,similar provisions that are silent on the matter. But the Board’s decision in Escobar provided a reasoned explanation for these divergent results: The Board imputes mattersinvolving an alien’s state of mind, while declining to impute objectiveconditions or characteristics. Section 1229b(a) hinges on the objective facts of immigrationstatus and place of residence. So the Board’s approach to § 1229b(a) largely follows from one straightforward distinction.
Second, respondents claim that the BIA adopted its no-imputationrule only because it thought Congress had left it no other choice. But Escobar belies this contention. The Board did explain how § 1229b(a)’s text supports its no-imputation policy. But the Board also brought its experience and expertise to bear on the matter: It noted that there was no precedent in its decisions for imputing status orresidence, and it argued that allowing imputation under § 1229b(a)would create anomalies in the statutory scheme. Escobar thus expressed the BIA’s view that statutory text, administrative practice, and regulatory policy all pointed toward disallowing imputation. In making that case, the opinion reads like a multitude of agency interpretations to which this and other courts have routinely deferred.
I am looking forward to digesting the case but, at first glance, it appears to me like a run-of-the-mill Chevron deference case.