Escobar v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

KATTIA GUADALUPE ESCOBAR,  Nos. 07-72843
Petitioner,
08-71777
v.
 Agency No.
ERIC H. HOLDER JR., Attorney A075-504-052
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 May 27, 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.

6187
 ESCOBAR v. HOLDER 6191

COUNSEL

Christopher J. Stender, Stender & Lappin, PC, San Diego,
California, for the petitioner.

Carol Federighi, 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

Kattia Guadalupe Escobar (“Escobar”) is a native and citi-
zen of El Salvador. She came to the United States and settled
in California with her mother in the early 1980s, when she
6192 ESCOBAR v. HOLDER
was approximately five years old. Her mother adjusted her
status to lawful permanent residence on March 3, 1992, when
Escobar was thirteen. Escobar herself attained lawful perma-
nent resident status on February 15, 2003. She has two U.S.
citizen children.

On August 12, 2006, after Escobar attempted to drive an
undocumented Mexican child across the border from Tijuana,1
the Department of Homeland Security (“DHS”) issued a
Notice to Appear charging Escobar with removability under
section 212(a)(6)(E)(i) of the INA, 8 U.S.C.
§ 1182(a)(6)(E)(i) (“Any alien who at any time knowingly has
encouraged, induced, assisted, abetted, or aided any other
alien to enter or to try to enter the United States in violation
of law is inadmissible.”).

In removal proceedings, the immigration judge (“IJ”) found
Escobar removable under section 212(a)(6)(E)(i) and held that
she was ineligible for cancellation of removal as a lawful per-
manent resident. Title 8 U.S.C. § 1229b(a) provides for can-
cellation of removal for a permanent resident who “(1) has
been an alien lawfully admitted for permanent residence for
not less than 5 years, (2) has resided in the United States con-
tinuously for 7 years after having been admitted in any status,
and (3) has not been convicted of any aggravated felony.”
Under Cuevas-Gaspar, the seven-year continuous residence
requirement in subsection (a)(2) was satisfied for Escobar by
imputing the 1992 admission of her mother for permanent res-
idence. See 430 F.3d at 1023-24. However, the IJ determined
that Escobar’s mother’s status could not be imputed to satisfy
1
While Escobar was in Tijuana, she agreed to take the child across the
border to see his mother, who was near death in a hospital in the United
States. In a sworn statement given to Border Patrol officers shortly after
they discovered the child’s identity, Escobar admitted that she had known
the boy lacked the appropriate documents when she attempted to drive
him across the border. Aside from the Notice to Appear, no other convic-
tions, charges, or government action resulted from this incident.
 ESCOBAR v. HOLDER 6193
the five-year permanent residence requirement in subsection
(a)(1).

Escobar appealed to the Board of Immigration Appeals
(“BIA”), raising only the issue of her eligibility for cancella-
tion of removal. In a published decision, the BIA noted its
disagreement with Cuevas-Gaspar, declined to apply Cuevas-
Gaspar’s holding to allow imputation for the five-year perma-
nent residence requirement, and dismissed Escobar’s appeal.
In re Escobar, 24 I. & N. Dec. 231 (BIA 2007). Escobar filed
a timely petition for review on July 19, 2007.

More than five months later, Escobar submitted a motion
to reopen to the BIA, raising the new argument that it was
legally impossible to have “encouraged, induced, assisted,
abetted, or aided” a minor, age eight, “to enter or to try to
enter the United States” illegally, because a child of that age
lacked the capacity to intend “to enter.” 8 U.S.C.
§ 1182(a)(6)(E)(i). The BIA denied her motion in a one-judge
per curiam decision on April 4, 2008, as untimely. The BIA
also stated that, even if it were “to reopen proceedings sua
sponte, the respondent has failed to establish a likelihood of
success on the merits of her claim.” Escobar timely appealed
the denial of her motion to reopen, and we consolidated the
petitions for review. See 8 U.S.C. § 1252(b)(6).

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
6194 ESCOBAR v. HOLDER
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. Escobar’s Eligibility for Cancellation of Removal

1. Imputation of Status, Intent, and State of Mind to Un-
emancipated Minor Children

[1] “[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
subject to the parent’s custody and control.” (citing Matter of
Winkens, 15 I. & N. Dec. 451 (BIA 1975)). As we explain in
a companion case, also filed today, “[w]e have allowed impu-
tation precisely because the minor either was legally incapa-
ble 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, at 6292-93 (9th Cir. 2009).2
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, No. 06-74983, at 6285-98. In declin-
ing to impute physical presence, we stressed that “the definition of ‘physi-
 ESCOBAR v. HOLDER 6195
On several occasions, we have confronted situations in which
a parent would qualify for relief under section 240A(a) or its
predecessor, section 212(c),3 while a child who at all times
had been in the physical custody of that parent would not. In
recognition of the fundamental concerns motivating this form
of discretionary relief, we have consistently imputed a par-
ent’s satisfaction of the provision’s status requirements to the
unemancipated minor children in that parent’s custody.

a. Section 212(c) and Lepe-Guitron

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
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 the applicant in 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

cal presence’ does not require a specific status, intent, or state of mind,”
id. at 6294 (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, No. 06-74983, at
6291-94.
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, 110 Stat. 3009 (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 IIRIRA § 304(b),
110 Stat. 3009-597; INS v. St. Cyr, 533 U.S. 289, 297 (2001).
6196 ESCOBAR v. HOLDER
resident status . . . many years after his parents achieved it,”
we concluded that Castillo-Felix did not foreclose the possi-
bility of imputation. On the contrary, we found a “number of
persuasive reasons to hold that a child’s ‘lawful unrelinqui-
shed domicile’ under section 212(c) is that of his or her par-
ents.” 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 relationship between permanent resident
parents 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
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”).
 ESCOBAR v. HOLDER 6197
[2] Second, Congress’s use of the term “domicile” rein-
forced 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 cannot determine their own domicile, id. at 1025-26. We
therefore 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

We first considered the possibility of imputation under sec-
tion 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.
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-
6198 ESCOBAR v. HOLDER
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-
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-
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.
 ESCOBAR v. HOLDER 6199
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, 150 (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
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-
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.
6200 ESCOBAR v. HOLDER
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
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
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).
 ESCOBAR v. HOLDER 6201
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 Escobar

In denying Escobar’s direct appeal, the BIA disagreed with
our opinion in Cuevas-Gaspar and declined to apply our rea-
soning to the five-year residence requirement in section
240A(a)(1). See In re Escobar, 24 I. & N. Dec. at 233-35.
However, the holding, reasoning, and logic of Cuevas-Gaspar
apply equally to the resident status requirements of both sec-
tion 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

It is “well-established that Congress delegated to the BIA
the authority to promulgate rules, on behalf of the Attorney
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 and found the
BIA’s interpretation of section 240A(a) unreasonable. See
Cuevas-Gaspar, 430 F.3d at 1021-29. Indeed, when scruti-
nized, the BIA’s decision in In re Escobar cannot fairly be
characterized as a “new” interpretation of section 240A(a),
but is rather the same unreasonable interpretation we rejected
6202 ESCOBAR v. HOLDER
in Cuevas-Gaspar.8 Thus, our precedent guides our assess-
ment of the BIA’s interpretation under Chevron.

b. The Requirement of “Lawful” Admission for Perma-
nent Residence and the Question of Congressional
Intent

[6] Contrary to the government’s assertion, Cuevas-Gaspar
is controlling precedent for the imputation of “lawful perma-
nent resident status from a parent to a child.” In re Escobar,
24 I. & N. Dec. at 234. Further, although being “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 Con-
gress.” In re Escobar, 24 I. & N. Dec. at 234.

[7] 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 government’s
emphasis on section 240A(a)(1)’s requirement of being “law-
fully admitted” is clearly misplaced. 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
prevent imputation, see Cuevas-Gaspar, 430 F.3d at 1025-26,
surely the change from “lawful unrelinquished domicile” to
8
Indeed, the BIA’s reliance on the same arguments in In re Escobar to
reject both Escobar’s appeal and Cuevas-Gaspar confirms that the ratio-
nale for imputation under section 240A(a)(2) applies with equal force to
section 240A(a)(1), and that the BIA’s interpretive positions are indistin-
guishable.
 ESCOBAR v. HOLDER 6203
“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 domi-
cile requirement, Lepe-Guitron “necessarily held that a par-
ent’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 require-
ment in section 240A(a)(1) is distinct, the distinction is not
relevant, and we again conclude that the change in terminol-
ogy is “not . . . so great as to be dispositive.” Id. at 1026.

[8] Second, because Escobar actually has been admitted for
permanent residence, it is beyond dispute that she has satis-
fied the substantive and procedural requirements of admission
for permanent residence.9 She 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. The govern-
ment’s defense of the BIA’s decision is thus flawed in two
critical respects: The decision is factually inaccurate in imply-
ing that Escobar has not satisfied the “mandated statutory and
regulatory application process and the substantive eligibility
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 cancella-
tion of removal necessarily requires imputing in other con-
texts and with regard to other forms of relief. See id. at 234
n.4. Although the BIA asserts that “if imputation of a parent’s
lawful permanent residence would allow a minor alien to ful-
fill the requirements for cancellation of removal, the child
9
We therefore do not consider the imputation of lawful permanent resi-
dent status to an unemancipated minor who has never been admitted for
permanent residence.
6204 ESCOBAR v. HOLDER
would never have to become a lawful permanent resident in
his own right,” id. at 235, this is simply not the case. The pos-
sibility of cancellation only arises when removal proceedings
have been initiated. Many more benefits accrue to those who
attain lawful permanent resident status than the one avenue to
relief from removal, such as eligibility for employment, the
right to live permanently in the United States, the ability to
vote in state and local elections that do not require U.S. citi-
zenship, the ability to travel freely within and without the
United States, and the ability to pursue U.S. citizenship.
Imputing a parent’s status for purposes of cancellation would
convey none of these other significant and desirable benefits.

[9] Finally, the government wrongly asserts that allowing
imputation 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.” Id. at 233. If sec-
tion 240A(a)’s silence regarding imputation suggests any-
thing, it suggests that Congress acquiesced in the unanimous
practice of the circuits to consider the issue, all of which had
found imputation appropriate under section 212(c). Regard-
less, in light of the statutory scheme and legislative history of
section 240A(a), allowing imputation for both the five- and
seven-year requirements would not “essentially destroy the
distinct tests mandated by Congress when it amended the stat-
ute,” id. at 234, because 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 neces-
sary to qualify for relief.” Id. (emphasis added). Therefore,
unlike the “physical presence” at issue in Ramos Barrios,
which does not include “an element of status, intent, or state
of mind,” Ramos Barrios, No. 06-74983, at 6292, the status
requirements of section 212(c) and section 240A(a) are
equally amenable to imputation.
 ESCOBAR v. HOLDER 6205
[10] Moreover, even with imputation, the requirements of
section 240A(a)(1) and (2) remain distinct, as all applicants
for cancellation of removal as permanent residents are still
required to demonstrate both five years spent as a lawful per-
manent resident and seven years of residence after admission
in any status.10 Applicants who have spent time in the United
States as the unemancipated minor children of lawful perma-
nent resident parents merely have an alternative mechanism 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 require-
ment would not be contrary in any way to congressional
intent.

c. The BIA’s Consistent Willingness To Impute in Other
Contexts

The government champions the BIA’s assertion 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 government identifies
two reasons why this distinction is relevant.

First, the government notes that imputing the abandonment
of permanent resident status is consistent with the “longstand-
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.
6206 ESCOBAR v. HOLDER
ing policy that a child cannot form the intent necessary to
establish his or her own domicile.” Id. This observation lacks
relevance; it is a distinction that makes no difference. The
argument appears to be that the abandonment of permanent
resident status 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 asser-
tion that the status of “admission” could not be imputed
because, “unlike domicile, which depends on intent or capac-
ity, ‘admission’ does not depend on either intent or capacity.”
Id. 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). Indeed, while unemancipated minors may be techni-
cally 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 perma-
nent resident status to minor children is appropriate, so far as
cancellation 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 inde-
pendent of his parents.” Ramos Barrios, No. 06-74983, at
6292-93.

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
Escobar satisfied the “attendant eligibility requirements” to
acquire permanent resident status. Moreover, the fact that it
may be more complicated to acquire permanent resident status
than to abandon it does not provide any indication as to
whether imputation is more appropriate for one than the other.
 ESCOBAR v. HOLDER 6207
If there is any reasonable conclusion to be drawn from that
fact, it is that the complications associated with acquiring per-
manent resident status favor imputation, as minor children are
less equipped to deal with those complications on their own.

[11] 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 v. Holder, 558 F.3d 903, 914
(9th Cir. 2009) (en banc) (quoting Morales-Izquierdo v. Gon-
zales, 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 observation that the BIA “repeat-
edly [has] held that a parent’s status, intent, or state of mind
is imputed to the parent’s unemancipated minor child in many
areas of immigration law, including asylum, grounds of inad-
missibility, and legal residency status.” Cuevas-Gaspar, 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 (quoting Chev-
ron, 467 U.S. at 843).

[12] With this framework in mind, Cuevas-Gaspar compels
the conclusions that imputation under section 240A(a)(1) is
6208 ESCOBAR v. HOLDER
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). Escobar has spent almost her whole life
within the United States. When Escobar was only thirteen and
her mother attained lawful permanent resident status, Escobar
easily could have adjusted her own status as well, with the
assistance of her mother. Not only is it absurd to penalize
Escobar for her mother’s failure to include her in the adjust-
ment process, but it flies in the face of common sense to con-
clude that a lawful permanent resident such as Escobar, who
has spent more than two decades establishing a 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)). Further, if Escobar had never attained law-
ful permanent resident status, her eligibility for cancellation
of removal would have been governed by section 240A(b),
under which she easily would have established that she had
been “physically present in the United States for a continuous
period of not less than 10 years.” 8 U.S.C. § 1229b(b)(1)(A).
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.
 ESCOBAR v. HOLDER 6209
Accordingly, we hold that, for purposes of satisfying the five
years of lawful permanent residence required under INA sec-
tion 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
(2005) (“Brand X”),12 and our decision in Duran Gonzales v.
DHS, 508 F.3d 1227 (9th Cir. 2007),13 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. We dis-
agree.
12
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.
13
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 at 980-82, we determined that so long as Perez-
Gonzalez was “based, at least in part, on ambiguity in the applicable stat-
utes,” our deference to the BIA’s interpretation was required. Duran Gon-
zales, 508 F.3d at 1236. After ascertaining that, “despite some language
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).
6210 ESCOBAR v. HOLDER
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 to Portland. See Brand X, 545 U.S. at 980. Accordingly,
when we authored the decision that the Supreme Court
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. at
1238 (quoting Brand X, 545 U.S. at 983). Accordingly, our
conclusion in Duran Gonzales that the BIA’s new interpreta-
tion 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
regulations. See id. at 1242; see also Perez-Gonzalez, 379
 ESCOBAR v. HOLDER 6211
F.3d at 794 (“In the absence of a more complete agency elab-
oration of how its interpretation of § 212(a)(9) can be recon-
ciled with its own regulations, we must defer to the
regulations rather than to the informal guidance memoran-
dum.”).

[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.14 As both Brand X and Duran Gon-
zales acknowledged, under Chevron, an agency’s interpreta-
tion of a statute it is charged with administering must be
reasonable. See Brand X, 545 U.S. at 997-1000; Duran Gon-
zales, 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 sec-
tion 240A(a) that the BIA resurrected in In re Escobar and
extended in Matter of Ramirez-Vargas. Our assessment of In
re Escobar therefore remains bound by the ongoing validity
of our holding in Cuevas-Gaspar.
14
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:
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
underlying concerns motivating Brand X are simply inapposite.
6212 ESCOBAR v. HOLDER
B. The Motion to Reopen

[15] Escobar concedes that her motion to reopen was
untimely. Absent exceptional circumstances, the untimeliness
of a motion to reopen bars consideration of the merits,
because we lack jurisdiction to consider whether the BIA
properly refused to reopen a case sua sponte. Toufighi v.
Mukasey, 538 F.3d 988, 993 (9th Cir. 2008). Escobar has
failed to demonstrate exceptional circumstances.

Escobar argues that we should follow Cardoso-Tlaseca in
reaching the merits of her motion. In Cardoso-Tlaseca, we
granted and remanded a petition for review in which the peti-
tioner faced removal on the basis of a conviction that had
been subsequently vacated and expunged. See 460 F.3d at
1104-05. The BIA had denied the petitioner’s motion to
reopen on the ground that it lacked jurisdiction under 8 C.F.R.
§ 1003.2(d) because the petitioner had departed from the
United States. Id. at 1105. Because the subsequently vacated
“conviction was a ‘key part’ of the government’s case” for
removal, id. at 1107, we remanded to the BIA “for a determi-
nation whether [the] original conviction was vacated on the
merits or because of immigration consequences,” id. at 1108.

Cardoso-Tlaseca is inapposite. Escobar’s new legal theory
is not comparable to a vacated conviction, particularly
because this theory did not arise from a change in law or
newly discovered evidence. On the contrary, the argument
was available from the outset of Escobar’s removal proceed-
ings. Moreover, the BIA denied Cardoso-Tlaseca’s motion to
reopen because he had left the United States, not because his
petition was untimely.

[16] Escobar also has not satisfied any of the well-
established grounds warranting equitable tolling of the dead-
line to file a motion to reopen. See Iturribarria v. INS, 321
F.3d 889, 897 (9th Cir. 2003) (“This court . . . recognizes
equitable tolling of deadlines and numerical limits on motions
 ESCOBAR v. HOLDER 6213
to reopen or reconsider during periods when a petitioner is
prevented from filing because of deception, fraud, or error, as
long as the petitioner acts with due diligence in discovering
the deception, fraud, or error.”). Escobar can point to no “de-
ception, fraud, or error” that delayed her motion to reopen.
See id. Accordingly, the BIA did not abuse its discretion in
denying this motion as untimely.

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
Escobar and others in her 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.

We further conclude that the BIA did not abuse its discre-
tion in denying Escobar’s motion to reopen as untimely.

PETITION No. 07-72843 GRANTED and REMANDED
for further proceedings consistent with this opinion;
PETITION No. 08-71777 DISMISSED.

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
6214 ESCOBAR v. HOLDER
“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. Here, the BIA held that it would not
“extend” our holding in Cuevas-Gaspar to the five-year per-
manent residence requirement. In re Escobar, 24 I. & N. Dec.
231, 235 (B.I.A. 2007). But, for present purposes, there is no
relevant 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
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
 ESCOBAR v. HOLDER 6215
(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.