Tubalado

MEMORANDUM **

Joshua Tubalado petitions for review of the Board of Immigration Appeals’s (“BIA”) order affirming the Immigration Judge’s (“IJ”) decision denying his application for cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252 , and we grant the petition.

Tubalado contends that his father’s lawful admission can be imputed to him, and that this additional time allows him to satisfy the seven-year continuous residence requirement. See 8 U.S.C. § 1229b(a)(2). The IJ and BIA did not have the advantage of Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir.2005), when they decided Tubalado’s case. At oral argument, Tubalado’s counsel suggested Tubalado’s father had resided continuously in the United States for seven years prior to his service in Japan. Under these circumstances, we believe these proceedings should be remanded to the BIA to consider Tubalado’s case anew in light of the teachings of Cuevas-Gaspar . The BIA should consider whether the reasoning of Cuevas-Gaspar extends to a situation where the alien did not reside in the United States with his parent during the applicable time period, and whether the reasoning of Cuevas-Gaspar does or does not affect…

concurring in part and dissenting in part:

I concur in the panel’s remand of this case to the BIA to determine in the first instance whether Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir.2005), allows *194 Tubalado, a permanent resident, to impute the admission date of his father to meet the cancellation of removal statute’s requirement of seven years’ continuous United States residency after lawful admission. I dissent from the panel’s remand to the BIA to “consider” whether Cuevas-Gaspar permits Tubalado to impute his father’s qualification for the “military exception” to the cancellation of removal statute’s residency requirements, 8 U.S.C. § 1229b(d)(3). 1 As I read that statute, it is not ambiguous, but clear, as a matter of law, that the “military exception” applies only to the person who served in the armed forces — not his or her children. As I read Cuevas-Gaspar , no one in that case, much less the mother whose residency status was imputed, served in the United States military.

The principle behind the Cuevas-Gaspar imputation rule is to avoid separating children from their permanent resident parents with whom they have resided for a significant period of time in…