On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. A 75-504-958.
The opinion of the court was delivered by: Wardlaw, Circuit Judge
Argued and Submitted December 8, 2008 -- Pasadena, California
Before: Jerome Farris, Susan P. Graber,*fn1 and Kim McLane Wardlaw, Circuit Judges.
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)(1) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1229b(a)(1). Because the rationale and holding of CuevasGaspar 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
Jose Luis Mercado-Zazueta ("Mercado"), a native and citizen of Mexico, entered the United States as a visitor in 1992, at the age of seven. With the exception of a brief 2005 vacation, Mercado has remained in the country ever since. In 1992, his mother married Ramon Mercado Cuevas ("Ramon"), who had been a lawful permanent resident of the United States since 1983. Ramon legally adopted Mercado in 1998, when he was thirteen years old. Mercado obtained independent lawful permanent resident status in 2002, at the age of seventeen, and has three siblings: a U.S. citizen brother, a U.S. citizen sister, and a lawful permanent resident sister.
In 2006, Mercado pled guilty to one count of aggravated assault in the Superior Court of Arizona. See Ariz. Rev. Stat. § 13-1204. The United States Department of Homeland Security ("DHS") initiated removal proceedings against him shortly afterward. Mercado conceded removability under section 237 of the INA, 8 U.S.C. § 1227(a)(2)(A)(i)(I), as an alien "convicted of a crime involving moral turpitude committed within five years . . . after the date of admission," but applied for cancellation of removal under INA § 240(a), 8 U.S.C. § 1229b(a).*fn2 The immigration judge pretermitted the application, finding Mercado ineligible for cancellation and ordering his removal to Mexico.
Mercado timely appealed to the Board of Immigration Appeals ("BIA"). In an unpublished decision, the BIA declined to apply Cuevas-Gaspar to allow imputation for the five-year permanent residence requirement, and dismissed Mercado's appeal. In re Mercado-Zazueta, A 75-504-958, 2007 WL 1195899 (BIA Mar. 29, 2007). Mercado filed a timely petition for review on April 13, 2007.
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 omitted). We review the BIA's denial of a motion to reopen for an abuse of discretion. Cardoso-Tlaseca v. Gonzales, 460 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).
A. Mercado's Eligibility for Cancellation of Removal
1. Imputation of Status, Intent, and State of Mind to Unemancipated Minor Children
"[B]oth the BIA and this court repeatedly have 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 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 knowledge of ineligibility for admission to that parent's minor children 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 have recently explained, "[w]e have allowed imputation precisely because the minor either was legally incapable 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, 2009 WL 1813469, at *9 (9th Cir. June 26, 2009).*fn3 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),*fn4 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 parent'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 differences" between 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 resident status . . . many years after his parents achieved it," we concluded that Castillo-Felix did not foreclose the possibility of imputation. Id. On the contrary, we found a "number of persuasive reasons to hold that a child's 'lawful unrelinquished domicile' under section 212(c) is that of his or her parents." Id.
First, we observed that the "position espoused by the government 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 ...