Escobar

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

Carol Federighi, Office of Immigration Litigation, U.S. Department of Justice, Civil Division, Washington, D.C., for the respondent.

Before: JEROME FARRIS, SUSAN P. GRABER, [*] and KIM McLANE WARDLAW, Circuit Judges.

Opinion by Judge WARDLAW; Concurrence by Judge GRABER.

WARDLAW, Circuit Judge:

We must decide whether our decision in Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir.2005), compels the conclusion 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 satisfying the five-year permanent residence requirement for cancellation 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.

Kattia Guadalupe Escobar ("Escobar") is a native and citizen of El Salvador. She came to the United States and settled in California with her mother in the early…

Opinion by Judge WARDLAW; Concurrence by Judge GRABER.

We must decide whether our decision in Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir.2005), compels the conclusion 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 satisfying the five-year permanent residence requirement for cancellation of removal under section 240A(a)(l) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1229b(a)(l). 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 citizen of El Salvador. She came to the United States and settled in California with her mother in the early 1980s, when she 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 permanent resident status on February 15, 2003. She has two U.S. citizen children.

On August 12, 2006,…

concurring:

I concur fully in Judge Wardlaw’s opinion. I write separately 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)(l), 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 designated country of removal. The children may not speak the language, 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 reason, chose not to seek legal status for the children at the same…