                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-20-2008

Augustin v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 06-4744




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                                           PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT


                       No. 06-4744


                 LUCKSON AUGUSTIN,
                           Petitioner

                             v.

                 ATTORNEY GENERAL
                OF THE UNITED STATES,
                            Respondent


           Petition for Review of an Order of the
            United States Department of Justice
               Board of Immigration Appeals
                  (BIA No. A44-595-689)
         Immigration Judge: Hon. Henry S. Dogin


                 Argued January 31, 2008

  BEFORE: RENDELL and CHAGARES, Circuit Judges,
            and POLLAK,* District Judge

   *
     Honorable Louis H. Pollak, Senior District Judge of the
United States District Court for the Eastern District of
Pennsylvania, sitting by designation.
                    (Filed: March 20, 2008)

Engy Abdelkader (Argued)
Legal Services of New Jersey
100 Metroplex Drive, Suite 402
Edison, NJ 08818
  Counsel for Petitioner

Peter D. Keisler
Douglas E. Ginsburg
John D. Williams (Argued)
U.S. Department of Justice
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044
  Counsel for Respondent



                 OPINION OF THE COURT


POLLAK, District Judge.

       Luckson Augustin petitions for review of an order of the
Board of Immigration Appeals (“BIA”) concluding that he is
removable and ineligible for cancellation of removal. We are
called upon to decide whether the BIA erred in refusing to
impute to petitioner his father’s years of continuous residence in
order to meet the seven-year requirement for cancellation of
removal.


                                2
                               I.

        Petitioner Luckson Augustin, born on August 24, 1981,
is a native and citizen of Haiti. He was admitted to the United
States as a lawful permanent resident (“LPR”) on February 24,
1995, at the age of thirteen.

       The Department of Homeland Security (“DHS”)
commenced removal proceedings against petitioner with a
notice to appear dated November 7, 2005, charging him as
removable for having been convicted of an aggravated felony.
See 8 U.S.C. § 1227(a)(2)(A)(iii). The notice alleged that
petitioner had been convicted of eluding police in New Jersey
and had been sentenced to three years imprisonment on August
19, 2005.

       On March 30, 2006, DHS filed an I-261 form
withdrawing the aggravated felony charge and replacing it with
charges that petitioner was removable on two other grounds: that
he had been convicted of two crimes involving moral turpitude,
and that he had been convicted of unlawful possession of a
firearm. See 8 U.S.C. §§ 227(a)(2)(A)(ii), (a)(2)(C). In support,
DHS made additional allegations that petitioner had been
convicted in New Jersey Superior Court on December 10, 2001,
of receiving stolen property and, on December 23, 2003, of
unlawful possession of a handgun.1



  1
   The I-261 indicates that, although DHS withdrew the charge
that petitioner had been convicted of an aggravated felony, DHS
did not withdraw the allegations supporting that charge.

                               3
      At a hearing before an immigration judge (“IJ”) on April
13, 2006, petitioner, represented by counsel, admitted the
government’s allegations.

        As evidence of petitioner’s convictions, the government
initially submitted the judgments of conviction for the weapon
and eluding police charges, but submitted only the criminal
complaint for the receiving stolen property charge. Upon the
IJ’s objection that he needed the judgment of conviction for the
receiving stolen property charge, the government submitted in
addition petitioner’s New Jersey rap sheet listing all of his New
Jersey convictions. The rap sheet indicates that petitioner was
arrested for receiving stolen property on March 25, 2000, found
guilty on December 10, 2001, sentenced on March 26, 2002, and
resentenced on April 25, 2003.

       At a hearing on May 11, 2006, the IJ, at petitioner’s
urging, granted petitioner’s counsel’s motion to withdraw from
the case. Petitioner then argued that he was eligible for
cancellation of removal despite having committed a crime of
moral turpitude in 2000, because he did not become removable
until being convicted of the gun charge in 2003 or his second
crime involving moral turpitude in 2005 — more than seven
years after his admission as an LPR. Cf. 8 U.S.C. § 1229b(a)(2)
(providing that an LPR is eligible for cancellation of removal
only after seven years of continuous residence and five years as
an LPR). The government responded that the commission of a
single crime involving moral turpitude “stops the clock”
accruing time toward the continuous residency requirement,
regardless of the existence of a second crime involving moral
turpitude rendering the alien removable. See 8 U.S.C.


                               4
§ 1229b(d)(1). The IJ pretermitted petitioner’s application for
cancellation of removal.

        At a subsequent hearing on petitioner’s application for
relief under the Convention Against Torture (“CAT”) on June
16, 2006, the IJ heard petitioner’s testimony regarding his fear
of returning to Haiti and received country reports in support of
petitioner’s application for CAT relief. Petitioner testified that
both of his parents were U.S. citizens, his mother having moved
to the United States in 1982 and his father in 1989. He testified
that his father, prior to obtaining citizenship, had been an LPR
starting in 1989. He further testified that his parents sponsored
him for LPR status, and that he obtained LPR status upon his
admission to the United States on February 24, 1995. In an oral
decision, the IJ found petitioner’s testimony credible, but denied
his CAT claim.

       On appeal to the BIA, petitioner, represented by counsel,
raised various arguments, including those he raises again on
appeal: (1) that the IJ erred in finding him ineligible for
cancellation of removal because a minor alien can count his
parents’ years as an LPR toward the statute’s seven-year
residency requirement,2 and (2) that petitioner’s conviction for
receiving stolen property (which cut off his accrual of time
toward the seven-year requirement) does not qualify as a
“conviction” for the purpose of removal because petitioner was
sentenced under a pre-trial diversion program. On October 13,
2006, the BIA affirmed the IJ in a four-page opinion.


   2
     Noting that petitioner had not raised this argument before
the IJ, the BIA elected to consider it for the first time on appeal.

                                 5
                               II.

       We have jurisdiction over the legal question raised by
petitioner regarding his eligibility for cancellation of removal
pursuant to Congress’s grant of jurisdiction in 8 U.S.C.
§ 1252(a).

       We do not, however, have jurisdiction to consider
whether the BIA erred in finding petitioner removable on the
basis of his conviction for receiving stolen property, because the
question is moot. The IJ held and BIA affirmed that petitioner
was also removable as charged with having been convicted of a
firearm offense. Because petitioner does not challenge that
ground of removal, his order of removal will stand without
regard to whether the stolen property conviction properly
qualifies as a ground of removal.3

       We review legal questions de novo, but “defer to the
BIA’s reasonable interpretations of statutes it is charged with
administering.” Silva-Rengifo v. Att’y Gen., 473 F.3d 58, 63
(3d Cir. 2007) (citing INS v. Aguirre-Aguirre, 526 U.S. 415, 424
(1999); Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837, 842-43 (1984)).




  3
    Although the government has not raised this jurisdictional
issue, we of course have a duty to inquire into the basis for our
own jurisdiction. See Adapt of Philadelphia v. Philadelphia
Hous. Auth., 433 F.3d 353, 361 n.10 (3d Cir. 2006).

                                6
                               III.

       The question before the court is whether the BIA erred in
refusing to impute to an alien who entered the United States as
a minor the alien’s parent’s years of continuous residence in
order to meet the seven-year requirement for cancellation of
removal.

       The Immigration and Nationality Act (“INA”), as
amended by the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (“IIRIRA”), Pub L. No.104-208,
Div. C, 110 Stat. 3009-546, provides that, for permanent
residents, “[t]he Attorney General may cancel removal in the
case of an alien who is inadmissible or deportable from the
United States if the alien”:

       (1) has been an alien lawfully admitted for permanent
       residence for not less than 5 years,

       (2) has resided in the United States continuously for 7
       years after having been admitted in any status, and

       (3) has not been convicted of any aggravated felony.

8 U.S.C. § 1229b(a). Under the INA, “‘admission’ and
‘admitted’ mean, with respect to an alien, the lawful entry of the
alien into the United States after inspection and authorization by
an immigration officer.” Id. § 1101(a)(13). The INA defines
“residence” as “the place of general abode; the place of general
abode of a person means his principal, actual dwelling place in
fact, without regard to intent.” Id. § 1101(a)(33). The statute


                                7
further provides that an alien’s period of continuous residence
for the purpose of meeting the residency requirement ends upon
the issuance of a notice to appear or upon the commission of a
crime that would render the alien inadmissible.              Id.
§ 1229b(d)(1).

        The BIA’s interpretation of the INA in an opinion
dismissing an alien’s appeal is entitled to Chevron deference.
See Sun Wen Chen v. Att’y Gen., 491 F.3d 100, 106 (3d Cir.
2007). Under Chevron, in reviewing an agency’s construction
of a statute administered by the agency, the court “ask[s] first ‘if
the statute is silent or ambiguous with respect to the specific
issue’ of law in the case,” using “‘traditional tools of statutory
construction’ to determine whether ‘Congress had an intention
on the precise question at issue.’” Id. (quoting Chevron U.S.A.,
Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 & n.9
(1984)). If Congress’s intention is not evident, the court
“move[s] to the second step, where ‘the question for the court is
whether the agency’s answer is based on a permissible
construction of the statute.’ When Congress has left a gap in a
statute, implicitly leaving the administering agency responsible
for filling that gap, ‘a court may not substitute its own
construction of a statutory provision for a reasonable
interpretation made by the administrator of an agency.’” Id.
(quoting Chevron, 467 U.S. at 834-44 & n.9).

       According to petitioner’s testimony, which was
uncontradicted and which the IJ accepted, petitioner was
admitted to the United States as an LPR in 1995, at the age of
thirteen. In immigrating to the United States, he joined his
parents; his father had obtained LPR status in 1989, and both his


                                 8
parents were eventually naturalized as U.S. citizens. Petitioner’s
commission of a crime involving moral turpitude in 2000 cut off
his accrual of years of continuous residence for the purpose of
becoming eligible for cancellation of removal. Petitioner
contends that, because he was a minor when he was first
admitted to the United States in 1995, his father’s preceding
years of continuous residence, commencing in 1989, should be
imputed to him for the purpose of meeting the seven-year
requirement.

        The BIA held that petitioner was not eligible for
cancellation of removal because, under the INA’s definitions of
“residence” and “admitted,” petitioner had not resided in the
country for the requisite seven years following admission. The
BIA declined to impute petitioner’s father’s years of residence
to petitioner because doing so did not accord with “the clear
statutory dictates of the residency requirements for
cancellation.” In so holding, the BIA rejected the reasoning of
Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir. 2005), in
which a divided panel of the Ninth Circuit held that, under the
cancellation provision, a parent’s preceding years of residence
in the United States are imputed to a minor child for the purpose
of meeting the seven-year residency requirement. The Ninth
Circuit held that the BIA’s disallowing such imputation was
unreasonable because it was inconsistent with the facts that “our
immigration statutes and regulations are replete with provisions
giving a high priority to the relation between permanent resident
parents and their children” and 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 inadmissibility, and legal residency status.” Id. at


                                9
1024 (internal quotation marks omitted).4 Judge Fernandez
dissented, finding that the cancellation of removal provision
“could not be more clear” in requiring seven years of actual
residence, and that, “[e]ven if one could argue that the statute is
ambiguous, the BIA’s interpretation is quite reasonable, and to
that we must defer.” Id. at 1032.

       Since dismissing petitioner’s appeal in the instant case,
the BIA has again repudiated the holding in Cuevas-Gaspar. In
In re Escobar, 24 I. & N. Dec. 231 (BIA 2007), the petitioner
had arrived as a young child with her mother in the early 1980s
and was admitted to LPR status in 2003; her mother became an
LPR earlier, in 1992. See id. at 231. At the time of her removal
proceedings in 2006, Escobar had not accrued the five years of
LPR status required for cancellation of removal. See 8 U.S.C.
§ 1229b(a)(1). Despite the fact that the case arose in the Ninth
Circuit, where Cuevas-Gaspar requires the BIA to impute a


 4
   The Cuevas-Gaspar court also considered whether IIRIRA’s
legislative history supported the BIA’s interpretation. Finding
no explanation in the legislative history for IIRIRA’s
introduction of the seven-year “residence” requirement, the
court speculated that Congress intended to resolve a conflict
between the BIA and the courts of appeals over whether the
seven years of “domicile” required under the former INA
§ 212(c) repealed by IIRIRA had to follow attainment of LPR
status, or whether it was sufficient simply to have attained LPR
status at some point; the cancellation of removal provision
resolves this question by expressly requiring five years of LPR
status and seven years of continuous residence. Cuevas-Gaspar,
430 F.3d at 1027-28.

                                10
minor alien’s parent’s years of residence to the minor alien for
the purpose of meeting the residency requirement for
cancellation of removal, the BIA refused to impute Escobar’s
mother’s years of LPR status to Escobar in order to meet the
five-year LPR status requirement: “[I]mputing a parent’s status
and residence to allow a child to meet the requirements of both
sections 240A(1) and (2) of the Act would essentially destroy
the distinct tests mandated by Congress when it amended the
statute to replace the former section 212(c) waiver with
cancellation of removal.” 24 I. & N. Dec. at 234-35; see also id.
at 235 (stating that the BIA would not follow Cuevas-Gaspar
outside the Ninth Circuit).

       The INA as amended by IIRIRA does not expressly
address the question whether parents’ years of residence may be
imputed to their minor children for the purpose of meeting the
seven-year requirement for cancellation of removal. The
cancellation of removal provision neither provides for such
imputation nor disallows it. Furthermore, we have been unable
to find in IIRIRA’s legislative history any indication of
Congress’s intention regarding imputation — which, prior to
IIRIRA’s enactment, some courts had read into the former INA
§ 212(c), a relief provision repealed by IIRIRA.5 See Cuevas-


  5
    As we discuss further below, imputation under the former
INA § 212(c) hinged on the ambiguous term “domicile” in that
provision, a term replaced by “residence” in the current
cancellation of removal provision. The government has not
contended before us that Congress in IIRIRA eliminated the
word “domicile” in favor of “residence” in order to eliminate
imputation, and IIRIRA’s legislative history does not provide

                               11
Gaspar, 430 F.3d at 1022-24 & n.7 (describing pre-IIRIRA
cases). In short, in Chevron terms, “the statute is silent . . . with
respect to the specific issue.” Chevron, 467 U.S. at 843.

        Accordingly, we move to Chevron’s second step, where
we must affirm the BIA’s interpretation as permissible. The
BIA declined to impute petitioner’s father’s years of residence
to petitioner because doing so would violate the statute’s clear
requirements for cancellation of removal. The statute requires
seven years of continuous “residence,” and “residence” is
defined as a person’s “principal, actual dwelling place in fact,
without regard to intent.” 8 U.S.C. § 1101(a)(33). It is
undisputed that petitioner did not “actual[ly] dwell[]” in the
United States for seven continuous years before he committed
the crime involving moral turpitude that cut off his period of
continuous residence. The BIA’s denial of cancellation of
removal on this ground — and its refusal to impute to petitioner
his father’s years of residence — is permissible because it is a
straightforward application of the statute’s requirements. We
cannot find the BIA unreasonable for failing to read into the
statute an exception seemingly at odds with the statute’s
requirements.

       We are not convinced by petitioner’s contentions,
echoing the Ninth Circuit’s opinion in Cuevas-Gaspar, that the
BIA’s interpretation is unreasonable because it conflicts with (1)
the high priority the INA otherwise places on relations between
LPR parents and their minor children; (2) the BIA’s prior


support for such an inference. Accordingly, we decline to
speculate along those lines.

                                 12
interpretation of the immigration laws and regulations as
allowing for imputation of parents’ statuses to their minor
children; and (3) the provision’s purpose of providing relief for
aliens who have developed close ties to the United States. Nor
are we persuaded to grant the petition on the strength of our
reasoning in Morel v. INS, 90 F.3d 833 (3d Cir. 1996), vacated
on other grounds, 144 F.3d 248 (3d Cir. 1998), where we
addressed imputation under the former INA § 212(c).

        First, although we agree that the BIA’s interpretation
does not further the goal of maintaining the relationships
between LPR parents and their minor children, and although the
legislative history of IIRIRA does reflect Congress’s continuing
acknowledgment of that general goal,6 we cannot on the basis of
that general policy goal alone find unreasonable the BIA’s
unwillingness to read into the statute an exception to the
requirements for cancellation of removal for minors whose LPR
parents preceded them in immigrating to the United States. The
requirements for cancellation of removal are clear. Congress
could have provided that LPR parents’ years of residence would
be imputed to their minor children. But Congress has not done
so.

       With regard to the second argument, that “the BIA’s
refusal to impute a parent’s permanent resident status here
conflicts with the BIA’s consistent willingness to impute a


   6
     See, e.g., H. Rep. 104-469, Part I, at 108 (1996) (House
Judiciary Committee report deeming a high priority uniting
“nuclear” families of spouses and minor children, possibly at the
expense of letting in fewer adult “extended family” members).

                               13
parent’s intent, state of mind, and status to a child,” Cuevas-
Gaspar, 430 F.3d at 1026, we cannot agree with the Ninth
Circuit that the BIA’s interpretation of the cancellation
provision unreasonably conflicts with the BIA’s prior decisions
on imputation. The three cases cited by the Ninth Circuit, see
id., form a line of cases concerning a single fact pattern: Where
a child leaves the country and his or her parent has abandoned
permanent residence in the United States, the parent’s intention
to abandon residence in the United States is imputed to the
child. See Matter of Huang, 19 I. & N. Dec. 749, 750 n.1 (BIA
1988) (following Matter of Winkens, 15 I. & N. Dec. 451, 452
(BIA 1975) (“[The parents’] abandonment of their lawful
permanent resident status is imputed to the respondent, who was
subject to their custody and control. He had gained lawful
permanent resident status through them, and he lost it when they
abandoned their residence and took him with them.”)); Matter
of Zamora, 17 I. & N. Dec. 395, 396 (BIA 1980) (“We hold that
this voluntary and intended abandonment by the mother is
imputed to the applicant, who was an unemancipated minor at
the time he was sent back to Mexico by his mother, and at the
time his mother abandoned her lawful resident status.”). These
cases are not in direct conflict with the BIA’s interpretation of
the cancellation statute because the determination in these cases
turned in part on the minor alien’s intention: Part of the test for
whether an alien has abandoned his status as an LPR is whether
he intended to return to the United States during his sojourn
abroad. See Chavez-Ramirez v. INS, 792 F.2d 932, 937 (9th Cir.
1986). Accordingly, a parent’s intention to stay abroad or return
to the United States was imputed to the minor child because the
child was presumed to be under his parents’ control and unable
to form a meaningful intention. By contrast, determining where


                                14
a minor “resides” within the meaning of the INA — a
determination made “without regard to intent,” 8 U.S.C.
§ 1101(a)(33) — presents no such question regarding a minor’s
intention.

        Third, we cannot find the BIA’s interpretation
unreasonable for conflicting with the ameliorative purpose of
cancellation of removal. Although the BIA’s ruling does deny
relief to certain aliens, that alone cannot render the BIA’s
interpretation unreasonable. Congress restricted relief to those
aliens who had accrued seven years of continuous residence in
addition to five years of LPR status. The BIA’s refusal to create
an exception simply heeds the statute’s plain requirements.

       Finally, we find the line of cases addressing imputation
under the former INA § 212(c) inapposite to the question before
us. Before IIRIRA’s enactment, the INA provided that the
Attorney General had discretion to waive deportation for
permanent residents who had “a lawful unrelinquished domicile
of seven consecutive years” in the United States. INA § 212(c),
8 U.S.C. § 1182(c) (1995) (repealed 1996).7 The term
“domicile” was not defined in the INA. The Second and Ninth
Circuits — and this Court, in a decision thereafter vacated —
ruled that “domicile” should be defined in accordance with the
common law, under which a child’s domicile is thought to


   7
     Although § 212(c) was, by its terms, only applicable in
exclusion proceedings for inadmissible aliens, it was eventually
construed to create discretionary relief in deportation
proceedings as well. See INS v. St. Cyr, 533 U.S. 289, 295
(2001).

                               15
follow that of the child’s parents because a “domiciliary” is
defined by the intention to return to the domicile during any
absence therefrom, and children are presumed incapable of
forming such an intention. Therefore, it was held, a minor
alien’s years of domicile in the United States began when his
parents established their domicile here, despite the fact that the
minor alien did not arrive until later. See Morel, 90 F.3d at 841;
Lepe-Guitron v. INS, 16 F.3d 1021, 1025 (9th Cir. 1994);
Rosario v. INS, 962 F.2d 220, 224 (2d Cir. 1992) (citing Miss.
Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989)
(“Since most minors are incapable of forming the requisite
intent to establish a domicile, their domicile is determined by
that of their parents.”)).

        Unlike the former § 212(c), the current cancellation of
removal provision does not contain the term “domicile,” which
was the statutory basis for imputing a minor alien’s parents’
years in the United States to the minor alien in accordance with
the common law. To the contrary, the current cancellation
provision contains the word “residence,” defined as an alien’s
“principal, actual dwelling place in fact, without regard to
intent.” 8 U.S.C. § 1101(a)(33). Under the former § 212(c),
petitioners benefitted from the canon of statutory interpretation
that “where Congress borrows terms of art in which are
accumulated the legal tradition and meaning of centuries of
practice, it presumably knows and adopts the cluster of ideas
that were attached to each borrowed word” — including, in the
case of “domicile,” that a child’s domicile would follow that of
his parents. See Valansi v. Ashcroft, 287 F.3d 203, 218 (3d Cir.
2002) (quoting Morrissette v. United States, 342 U.S. 246, 263
(1952)). However, the cancellation of removal provision


                               16
contains no such undefined term, and we cannot find
unreasonable the BIA’s straightforward application of the
cancellation of removal provision’s requirements.

                            IV.

       For the reasons given above, we do not find the BIA’s
interpretation of the cancellation of removal provision
unreasonable. We will therefore DENY the petition for review.




                             17
