Each alien seeking cancellation of removal must fulfill the residency requirements on their own. Holder v. Martinez Gutierrez

A Board of Immigration Appeals (BIA) denial of cancellation of removal is upheld, where: 1) the aliens lacked the required years of continuous presence and lawful permanent resident status; and 2) the BIA’s rejection of imputation of their parents’ years of continuous presence and lawful permanent resident status was based on a permissible construction of the cancellation of removal statute, 8 USC section 1229b(a).

Justice Elena Kagan, writing for a unanimous Court, reversed the Ninth Circuit and remanded. The Court held that the BIA reasonably construed 8 U.S.C. 1229(a) to require each alien seeking cancellation of removal to fulfill the residency requirements on their own. An unemancipated minor cannot use his or her parent’s years of residency to fulfill the requirements. The Court did not decide if another construction of the statute is possible because the BIA’s construction was permissible.

Carlos Martinez Gutierrez, a native and citizen of Mexico, applied to an immigration judge for cancellation of his removal from the United States. The government appealed and the Board of Immigration Appeals (BIA) sustained the government’s appeal. The U.S. Court of Appeals for the Ninth Circuit granted Gutierrez’s petition for review of the BIA’s decision and remanded to the BIA to allow it to reconsider his case based on the Ninth Circuit’s decision in Mercado Zazueta v. Holder, 580 F.3d 1102 (9th Cir. 2009). That case held that “[f]or purposes of satisfying the five years of lawful permanent residence required under 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 the parent.”

1. Can a parent’s years of lawful permanent resident status be applied to an alien who resided with that parent as an unemancipated minor, for the purpose of satisfying 8 U.S.C. 1229b(a)(1)’s requirement that the alien seeking cancellation of removal have “been an alien lawfully admitted for permanent residence for not less than 5 years”?

2. Can a parent’s years of residence after lawful admission to the United States can be applied to an alien who resided with that parent as an unemancipated minor, for the purpose of satisfying 8 U.S.C. 1229b(a)(2)’s requirement that the alien seeking cancellation of removal have “resided in the United States continuously for 7 years after having been admitted in any status”?

Decision: 9 votes for Holder, 0 vote(s) against
Legal provision: 8 U. S. C. §1229b(a)

SUPREME COURT OF THE UNITED STATES

_________________

Nos. 10–1542 and 10–1543

_________________

ERIC H. HOLDER, Jr., ATTORNEY GENERAL, PETITIONER

10–1542      v.

CARLOS MARTINEZ GUTIERREZ

ERIC H. HOLDER, Jr., ATTORNEY GENERAL, PETITIONER

10–1543      v.

DAMIEN ANTONIO SAWYERS

on writs of certiorari to the united states court of appeals for the ninth circuit

[May 21, 2012]

Justice Kagan delivered the opinion of the Court.

An immigration statute, 8 U. S. C. §1229b(a), authorizes the Attorney General to cancel the removal of an alien from the United States so long as the alien satisfies certain criteria. One of those criteria relates to the length of time an alien has lawfully resided in the United States, and another to the length of time he has held permanent resident status here. We consider whether the Board of Immigration Appeals (BIA or Board) could reasonably conclude that an alien living in this country as a child must meet those requirements on his own, without counting a parent’s years of residence or immigration status. We hold that the BIA’s approach is based on a permissible construction of the statute.

I

A

The immigration laws have long given the Attorney General discretion to permit certain otherwise-removable aliens to remain in the United States. See Judulang v. Holder, 565 U. S. ___, ___ (2011) (slip op., at 2–4). The Attorney General formerly exercised this authority by virtue of §212(c) of the Immigration and Nationality Act (INA), 66Stat. 187, 8 U. S. C. §1182(c) (1994 ed.), a provision with some lingering relevance here, see infra, at 7–9. But in 1996, Congress replaced §212(c) with §1229b(a) (2006 ed.). That new section, applicable to the cases before us, provides as follows:

“(a) Cancellation of removal for certain permanent residents

“The 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.” Ibid.

Section 1229b(a) thus specifies the criteria that make an alien eligible to obtain relief from the Attorney General. The first paragraph requires that the alien have held the status of a lawful permanent resident (LPR) for at least five years. And the second adds that the alien must have lived in the United States for at least seven continuous years after a lawful admission, whether as an LPR or in some other immigration status. [ 1 ] (The third paragraph is not at issue in these cases.)

The question we consider here is whether, in applying this statutory provision, the BIA should impute a parent’s years of continuous residence or LPR status to his or her child. That question arises because a child may enter the country lawfully, or may gain LPR status, after one of his parents does. A parent may therefore satisfy the re- quirements of §§1229b(a)(1) and (2), while his or her child, considered independently, does not. In these circum- stances, is the child eligible for cancellation of removal?

The Ninth Circuit, the first court of appeals to confront this issue, held that such an alien could obtain relief. See Cuevas-Gaspar v. Gonzales, 430 F. 3d 1013 (2005). Enrique Cuevas-Gaspar and his parents came to the United States illegally in 1985, when he was one year old. Cuevas-Gaspar’s mother was lawfully admitted to the country in 1990, as an LPR. But Cuevas-Gaspar was lawfully admitted only in 1997, when he too received LPR status. That meant that when Cuevas-Gaspar committed a removable offense in 2002, he could not independently sat- isfy §1229b(a)(2)’s requirement of seven consecutive years of residence after a lawful entry. [ 2 ] (The parties agreed that he just met §1229b(a)(1)’s 5-year status requirement.) The Board deemed Cuevas-Gaspar ineligible for relief on that account, but the Ninth Circuit found that position unreasonable. According to the Court of Appeals, the Board should have “imputed” to Cuevas-Gaspar his mother’s years of continuous residence during the time he lived with her as an “unemancipated minor.” Id., at 1029. That approach, the Ninth Circuit reasoned, followed from both the INA’s “priorit[ization]” of familial relations and the Board’s “consistent willingness” to make imputations from a parent to a child in many areas of immigration law. Id., at 1026.

The Board responded by reiterating its opposition to imputation under both relevant paragraphs of §1229b(a). In In re Escobar, 24 I. & N. Dec. 231 (2007), the Board considered whether a child could rely on a parent’s period of LPR status to satisfy §1229b(a)(1)’s 5-year clock. The Board expressly “disagree[d] with the reasoning” of Cuevas-Gaspar, rejecting the Ninth Circuit’s understanding of both the statute and the Board’s prior policies. 24 I. & N. Dec., at 233–234, and n. 4. Accordingly, the Board announced that it would “decline to extend” Cuevas-Gaspar to any case involving §1229b(a)(1), and that it would ignore the decision even as to §1229b(a)(2) outside the Ninth Circuit. 24 I. & N. Dec., at 235. A year later, in Matter of Ramirez-Vargas, 24 I. & N. Dec. 599 (2008), the BIA took the final step: It rejected imputation under §1229b(a)(2) in a case arising in the Ninth Circuit, maintaining that the court should abandon Cuevas-Gaspar and defer to the Board’s intervening reasoned decision in Escobar. See Ramirez-Vargas, 24 I. & N. Dec., at 600–601 (citing National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U. S. 967 (2005) ).

The BIA’s position on imputation touched off a split in the courts of appeals. The Third and Fifth Circuits both deferred to the BIA’s approach as a reasonable construction of §1229b(a). See Augustin v. Attorney Gen., 520 F. 3d 264 (CA3 2008); Deus v. Holder, 591 F. 3d 807 (CA5 2009). But in Mercado-Zazueta v. Holder, 580 F. 3d 1102 (2009), the Ninth Circuit doubled down on its contrary view, declaring the BIA’s position unreasonable and requiring imputation under both §§1229b(a)(1) and (a)(2). See id., at 1103 (“[T]he rationale and holding of Cuevas-Gaspar apply equally to the five-year permanent residence and the seven-year continuance residence requirements” of §1229b(a)).

B

Two cases are before us. In 1989, at the age of five, respondent Carlos Martinez Gutierrez illegally entered the United States with his family. Martinez Gutierrez’s father was lawfully admitted to the country two years later as an LPR. But Martinez Gutierrez himself was neither lawfully admitted nor given LPR status until 2003. Two years after that, Martinez Gutierrez was apprehended for smuggling undocumented aliens across the border. He admitted the offense, and sought cancellation of removal. The Immigration Judge concluded that Martinez Gutierrez qualified for relief because of his father’s immigration history, even though Martinez Gutierrez could not satisfy either §1229b(a)(1) or §1229b(a)(2) on his own. See App. to Pet. for Cert. in No. 10–1542, pp. 20a–22a (citing Cuevas-Gaspar, 430 F. 3d 1013). The BIA reversed, and after entry of a removal order on remand, reaffirmed its disposition in an order relying on Escobar, see App. to Pet. for Cert. in No. 10–1542, at 5a–6a. The Ninth Circuit then granted Martinez Gutierrez’s petition for review and remanded the case to the Board for reconsideration in light of the court’s contrary decisions. See 411 Fed. Appx. 121 (2011).

Respondent Damien Sawyers was lawfully admitted as an LPR in October 1995, when he was 15 years old. At that time, his mother had already resided in the country for six consecutive years following a lawful entry. After Sawyers’s conviction of a drug offense in August 2002, the Government initiated removal proceedings. The Immigration Judge found Sawyers ineligible for cancellation of removal because he was a few months shy of the seven years of continuous residence required under §1229b(a)(2). See App. to Pet. for Cert. in No. 10–1543, p. 13a. (No one doubted that Sawyers had by that time held LPR status for five years, as required under §1229b(a)(1).) The Board affirmed, relying on its reasoning in Escobar. See In re Sawyers, No. A44 852 478, 2007 WL 4711443 (Dec. 26, 2007). Sawyers petitioned the Ninth Circuit for review, arguing that the Board should have counted his mother’s years of residency while he was a minor toward §1229b(a)(2)’s 7-year requirement. As in Gutierrez, the Court of Appeals granted the petition and remanded the case to the BIA. See 399 Fed. Appx. 313 (2010).

We granted the Government’s petitions for certiorari, 564 U. S. ___ (2011), consolidated the cases, and now reverse the Ninth Circuit’s judgments.

II

The Board has required each alien seeking cancellation of removal to satisfy §1229b(a)’s requirements on his own, without counting a parent’s years of continuous residence or LPR status. That position prevails if it is a reasonable construction of the statute, whether or not it is the only possible interpretation or even the one a court might think best. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 –844, and n. 11 (1984); see also INS v. Aguirre-Aguirre, 526 U. S. 415 –425 (1999) (according Chevron deference to the Board’s interpretations of the INA). We think the BIA’s view on imputation meets that standard, and so need not decide if the statute permits any other construction.

The Board’s approach is consistent with the statute’s text, as even respondents tacitly concede. Section 1229b(a) does not mention imputation, much less require it. The provision calls for “the alien”—not, say, “the alien or one of his parents”—to meet the three prerequisites for cancellation of removal. Similarly, several of §1229b(a)’s other terms have statutory definitions referring to only a single individual. See, e.g., §1101(a)(13)(A) (“The terms ‘admission’ and ‘admitted’ mean, with respect to an alien, the lawful entry of the alien into the United States” (emphasis added)); §1101(a)(33) (“The term ‘residence’ means the place of general abode; the place of general abode of a person means his principal, actual dwelling” (emphasis added)). Respondents contend that none of this language “forecloses” imputation: They argue that if the Board allowed imputation, “[t]he alien” seeking cancellation would “still have to satisfy the provision’s durational requirements”—just pursuant to a different computational rule. Brief for Respondent Martinez Gutierrez in No. 10–1542, p. 16 (hereinafter Martinez Gutierrez Brief); see Brief for Respondent Sawyers in No. 10–1543, pp. 11, 15 (hereinafter Sawyers Brief). And they claim that the Board’s history of permitting imputation under similarly “silent” statutes supports this construction. Martinez Gutierrez Brief 16; see Sawyers Brief 15–16; infra, at 10–11. But even if so—even if the Board could adopt an imputation rule consistent with the statute’s text—that would not avail respondents. Taken alone, the language of §1229b(a) at least permits the Board to go the other way—to say that “the alien” must meet the statutory conditions independently, without relying on a parent’s history.

For this reason, respondents focus on §1229b(a)’s history and context—particularly, the provision’s relationship to the INA’s former §212(c) and its associated imputation rule. Section 212(c)—§1229b(a)’s predecessor—generally allowed the Attorney General to prevent the removal of an alien with LPR status who had maintained a “lawful unrelinquished domicile of seven consecutive years” in this country. 8 U. S. C. §1182(c) (1994 ed.). Like §1229b(a), §212(c) was silent on imputation. Yet the Second, Third, and Ninth Circuits (the only appellate courts to consider the question) concluded that, in determining eligibility for relief under §212(c), the Board should impute a parent’s years of domicile to his or her child. See Rosario v. INS, 962 F. 2d 220 (CA2 1992); Lepe-Guitron v. INS, 16 F. 3d 1021, 1024–1026 (CA9 1994); Morel v. INS, 90 F. 3d 833, 840–842 (CA3 1996). Those courts reasoned that at common law, a minor’s domicile was “the same as that of its parents, since most children are presumed not legally capable of forming the requisite intent to establish their own domicile.” Rosario, 962 F. 2d, at 224; see Mississippi Band of Choctaw Indians v. Holyfield, 490 U. S. 30, 48 (1989) (defining “domicile” as “physical presence in a place in connection with a certain state of mind concerning one’s intent to remain there”). So by the time Congress replaced §212(c) with §1229b(a), the BIA often imputed a parent’s years of domicile to a child in determining eligibility for cancellation of removal. Sawyers argues that against this backdrop, Congress “would have understood the language it chose [in §1229b(a)] to provide for imputation.” Sawyers Brief 10.

But we cannot conclude that Congress ratified an imputation requirement when it passed §1229b(a). As all parties agree, Congress enacted §§1229b(a)(1) and (a)(2) to resolve an unrelated question about §212(c)’s meaning. See id., at 17; Martinez Gutierrez Brief 28; Brief for Petitioner 25. Courts had differed on whether an alien’s “seven consecutive years” of domicile under §212(c) all had to post-date the alien’s obtaining LPR status. See Cuevas-Gaspar, 430 F. 3d, at 1027–1028 (canvassing split). Congress addressed that split by creating two distinct durational conditions: the 5-year status requirement of subsection (a)(1), which runs from the time an alien becomes an LPR, and the 7-year continuous-residency requirement of subsection (a)(2), which can include years preceding the acquisition of LPR status. In doing so, Congress elimi- nated the very term—“domicile”—on which the appeals courts had founded their imputation decisions. See supra, at 8. That alteration dooms respondents’ position, because the doctrine of congressional ratification applies only when Congress reenacts a statute without relevant change. See Jama v. Immigration and Customs Enforcement, 543 U. S. 335, 349 (2005) . [ 3 ] So the statutory history here provides no basis for holding that the BIA flouted a congressional command in adopting its no-imputation policy.

Nor do the INA’s purposes demand imputation here, as both respondents claim. According to Martinez Gutierrez, the BIA’s approach contradicts that statute’s objectives of “providing relief to aliens with strong ties to the United States” and “promoting family unity.” Martinez Gutierrez Brief 40, 44; see Sawyers Brief 37. We agree—indeed, we have stated—that the goals respondents identify underlie or inform many provisions of immigration law. See Fiallo v. Bell, 430 U. S. 787 , n. 6 (1977); INS v. Errico, 385 U. S. 214, 220 (1966) . But they are not the INA’s only goals, and Congress did not pursue them to the nth degree. To take one example, §1229b(a)’s third paragraph makes aliens convicted of aggravated felonies ineligible for cancellation of removal, regardless of the strength of their family ties. See §1229b(a)(3). And more generally—as these very cases show—not every alien who obtains LPR status can immediately get the same for her spouse or minor children. See Brief for Petitioner 31–32, and n. 9 (providing program-specific examples). We cannot read a silent statute as requiring (not merely allowing) imputation just because that rule would be family-friendly.

Respondents’ stronger arguments take a different tack—that we should refuse to defer to the Board’s decision even assuming Congress placed the question of imputation in its hands. Respondents offer two main reasons. First, they contend that the Board’s approach to §1229b(a) cannot be squared with its acceptance of imputation under other, similar statutory provisions. This “wil[d]” and “ ‘[u]n- explained inconsistency,’ ” Sawyers asserts, is the very “paradigm of arbitrary agency action.” Sawyers Brief 13, 41 (emphasis deleted); see Martinez Gutierrez Brief 52–54. Second, they argue that the Board did not appreciate its own discretion over whether to allow imputation. The Board, they say, thought Congress had forbidden imputation, and so did not bring its “ ‘experience and expertise to bear’ ” on the issue. Id., at 31 (quoting PDK Labs. Inc. v. DEA, 362 F. 3d 786, 797 (CADC 2004)); see Sawyers Brief 38–39. These arguments are not insubstantial, but in the end neither persuades us to deny the Board the usual deference we accord to agency interpretations.

Start with the claim of inconsistency. The BIA has indeed imputed parental attributes to children under other INA provisions that do not mention the matter. Section 1182(k), for example, enables the Attorney General to let certain inadmissible aliens into the country if he finds “that inadmissibility was not known to, and could not have been ascertained by the exercise of reasonable diligence by, the immigrant before the time of departure.” Like §1229b(a), that provision refers to a single person (“the immigrant”) and says nothing about imputation. But the BIA has consistently imputed a parent’s knowledge of inadmissibility (or lack thereof) to a child. See, e.g., Senica v. INS, 16 F. 3d 1013, 1015 (CA9 1994) (“Therefore, the BIA reasoned, the children were not entitled to relief under [§1182(k)] because [their mother’s] knowledge was imputed to them”); In re Mushtaq, No. A43 968 082, 2007 WL 4707539 (BIA, Dec. 10, 2007) (per curiam); In re Ahmed, No. A41 982 631, 2006 WL 448156 (BIA, Jan. 17, 2006) (per curiam).

Similarly, the Board imputes a parent’s abandonment (or non-abandonment) of LPR status to her child when determining whether that child can reenter the country as a “returning resident immigran[t]” under §1181(b). See Matter of Zamora, 17 I. & N. Dec. 395, 396 (1980) (hold- ing that a “voluntary and intended abandonment by the mother is imputed” to an unemancipated minor child for purposes of applying §1181(b)); Matter of Huang, 19 I. & N. Dec. 749, 755–756 (1988) (concluding that a mother and her children abandoned their LPR status based solely on the mother’s intent); In re Ali, No. A44 143 723, 2006 WL 3088820 (BIA, Sept. 11, 2006) (holding that a child could not have abandoned his LPR status if his mother had not abandoned hers). And once again, that is so even though neither §1181(b) nor any other statutory provision says that the BIA should look to the parent in assessing the child’s eligibility for reentry.

But Escobar provided a reasoned explanation for these divergent results: The Board imputes matters involving an alien’s state of mind, while declining to impute objective conditions or characteristics. See 24 I. & N. Dec., at 233–234, and n. 4. On one side of the line, knowledge of inadmissibility is all and only about a mental state. See, e.g., Senica, 16 F. 3d, at 1015; In re Ahmed, 2006 WL 448156. Likewise, abandonment of status turns on an alien’s “intention of . . . returning to the United States” to live as a permanent resident, Zamora, 17 I. & N. Dec., at 396; the Board thus explained that imputing abandonment is “consistent with the . . . longstanding policy that a child cannot form the intent necessary to establish his or her own domicile,” Escobar, 24 I. & N. Dec., at 234, n. 4. And as that analogy recalls, the 7-year domicile requirement of the former §212(c) also involved intent and so lent itself to imputation. See Rosario, 962 F. 2d, at 224; supra, at 8. But the 5- and 7-year clocks of §1229b(a) fall on the other side of the line, because they hinge not on any state of mind but on the objective facts of immigration status and place of residence. See Escobar, 24 I. & N. Dec., at 233 (“[W]e find that residence is different from domicile because it ‘contains no element of subjective intent’ ” (quoting Cuevas-Gaspar, 430 F. 3d, at 1031 (Fernandez, J., dissenting))). The BIA’s varied rulings on imputation thus largely follow from one straightforward distinction. [ 4 ]

Similarly, Escobar belies respondents’ claim that the BIA adopted its no-imputation rule only because it thought Congress had left it no other choice. The Board, to be sure, did not highlight the statute’s gaps or ambiguity; rather, it read §1229b(a)’s text to support its conclusion that each alien must personally meet that section’s durational requirements. See 24 I. & N. Dec., at 235. But the Board also explained that “there [was] no precedent” in its decisions for imputing status or residence, and distinguished those statutory terms, on the ground just explained, from domicile or abandonment of LPR status. Id., at 234; see id., at 233–234, and n. 4. And the Board argued that allowing imputation under §1229b(a) would create anomalies in administration of the statutory scheme by permitting even those who had not obtained LPR status—or could not do so because of a criminal history—to become eligible for cancellation of removal. See id., at 234–235, and n. 5. The Board therefore saw neither a “logical” nor a “legal” basis for adopting a policy of imputation. Id., at 233. We see nothing in this decision to suggest that the Board thought its hands tied, or that it might have reached a different result if assured it could do so. To the contrary, the decision expressed the BIA’s view, based on its experience implementing the INA, that statutory text, administrative practice, and regulatory policy all pointed in one direction: toward disallowing imputation. In making that case, the decision reads like a multitude of agency interpretations—not the best example, but far from the worst—to which we and other courts have routinely deferred. We see no reason not to do so here.

Because the Board’s rejection of imputation under §1229b(a) is “based on a permissible construction of the statute,” Chevron, 467 U. S., at 843, we reverse the Ninth Circuit’s judgments and remand the cases for further proceedings consistent with this opinion.

It is so ordered.

Notes 1 The INA defines “admitted” as referring to “the lawful entry ofthe alien into the United States after inspection and authorization by an immigration officer.” (a)(13)(A). The 7-year clock of §1229b(a)(2) thus begins with an alien’s lawful entry. 2 The 7-year clock stopped running on the date of Cuevas-Gaspar’s offense under a statutory provision known as the “stop-time” rule. See §1229b(d)(1) (“For purposes of this section, any period of continuous residence . . . in the United States shall be deemed to end . . . when the alien is served a notice to appear . . . or . . . when the alien has committed an offense . . . that renders the alien . . . removable from the United States . . . , whichever is earliest”). 3 Sawyers contends that §1229b(a)(2)’s replacement term—“resided continuously”—is a “term of art” in the immigration context which incorporates “an intent component” and so means the same thing as “domiciled.” Sawyers Brief 25–26 (emphasis deleted). Thus, Sawyers argues, we should read §1229b(a) as reenacting §212(c) without meaningful change. See id., at 25. But even assuming that Congress could ratify judicial decisions based on the term “domicile” through a new statute using a synonym for that term, we do not think “resided continuously” qualifies. The INA defines “residence” as a person’s “princi-pal, actual dwelling place in fact, without regard to intent,” (emphasis added), and we find nothing to suggest that Congress added an intent element, inconsistent with that definition, by requiring that the residence have been maintained “continuously for 7 years.”  Respondents aver that the BIA deviates from this principle in imputing to a child his parent’s “ ‘firm resettlement’ ” in another country, which renders an alien ineligible for asylum without regard to intent. See Sawyers Brief ; Martinez Gutierrez Brief . But the Government denies that it has a “settled imputation rule” in that context. Reply Brief for Petitioner 13. And the sources on which respondents rely are slender reeds: a 40-year old ruling by a regional commissioner (not the Board itself) that considered the conduct of both the parents and the child, see Matter of Ng, 12 I. & N. Dec. 411 (1967), and a Ninth Circuit decision imputing a parent’s resettlement even though the Board had focused only on the child’s actions, see Vang v. INS, 146 F. 3d 1114, 1117 (1998). Based on these scant decisions, we cannot conclude that the Board has any policy on imputing resettlement, let alone one inconsistent with Escobar.

_______________________________________________

Holder v. Guitierrez and Holder v. Sawyers (consolidated)

Docket No., 10-1542 and 10-1543

Argument Date: TBD

Questions Presented for 10-1542

1. Whether a parent’s years of lawful permanent resident status can be imputed to an alien who resided with that parent as an unemancipated minor, for the purpose of satisfying 8 U.S.C. 1229b(a)(1)’s requirement that the alien seeking cancellation of removal have “been an alien lawfully admitted for permanent residence for not less than 5 years.”

2. Whether a parent’s years of residence after lawful admission to the can be imputed to an alien who resided with that parent as an unemancipated minor, for the purpose of satisfying 8 U.S.C. 1229b(a)(2)’s requirement that the alien seeking cancellation of removal have “resided in the continuously for 7 years after having been admitted in any status.”

Questions Presented for 10-1543

Whether a parent’s years of residence after lawful admission to the United States can be imputed to an alien who resided with that parent as an unemancipated minor, for the purpose of satisfying 8 U.S.C. 1229b(a)(2)’s requirement that the alien seeking cancellation of removal have “resided in the continuously for 7 years after having been admitted in any status.”

Posted in 8 U.S. C. 1229(a), Cancellation of Removal, U.S. Supreme Court | Tagged | Leave a comment

Motion to reopen must be filed within 90 days of the dismissal of the Board appeal, regardless of the pendency of a motion to reconsider the removal order.

Doc Uploaded Filed Description
1 04/25/2012 04/25/2012 Oral Argument
2 05/21/2012 05/21/2012 Opinion (TINDER)

Leonida M. SARMIENTO and Romeo L. Sarmiento, Petitioners, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 11–2841.

Argued April 25, 2012. — May 21, 2012

Before POSNER, SYKES and TINDER, Circuit Judges.

Shannon M. Shepherd, Immigration Attorneys, LLP, Chicago, IL, for Petitioners.Genevieve Holm, OIL, Department of Justice, Washington, DC, for Respondent.

An alien subject to an order of removal has 90 days from the entry of a final administrative order of removal to seek to reopen the removal proceedings. The question presented in this case is whether the filing of a motion to reconsider an order of removal tolls that 90–day period until a ruling is made on a motion to reconsider. An Immigration Judge ordered removal for Leonida and Romeo Sarmiento after refusing to adjust their status to permanent residents, and the Board of Immigration Appeals dismissed their appeal. The Sarmientos moved the Board for reconsideration, which it denied. Within 90 days of that denial, but several months after the Board’s initial dismissal, the Sarmientos moved to reopen. The Board denied the motion as untimely, concluding that a motion to reopen must be filed within 90 days of the dismissal of the Board appeal, regardless of the pendency of a motion to reconsider the removal order. Because the Board’s interpretation of the applicable statute and regulation is reasonable, the petition for review presented to this court is denied.

I. Background

The Sarmientos, citizens of the Philippines, entered the United States under nonimmigrant visas, Leonida in 2003 and Romeo in 2004. About a month before Leonida’s visa was set to expire, her employer petitioned on her behalf for alien-worker status, and she applied for adjustment of status. Leonida is a nurse and qualified as a skilled worker or professional under 8 U.S.C. § 1153(b)(3)(A)(i) or (ii). At the same time, Romeo applied for adjustment of status as Leonida’s spouse. The petition for worker status was granted in late 2004.

Ten months later, immigration officials denied the Sarmientos’ applications for adjustment of status because Leonida had not submitted evidence of her certification to practice nursing in the United States, as required by 8 U.S.C. § 1182(a)(5)(C) (the results of a necessary English exam were pending). The Sarmientos reapplied for adjustment of status a few months later, but their applications were again denied, this time because Leonida filed her second application for adjustment of status after her lawful status had lapsed for over 180 days, rendering her ineligible for adjustment of status. See id. § 1255(c)(7), (k). The Department of Homeland Security began removal proceedings in late 2007.

At a removal hearing before the IJ, the Sarmientos renewed their applications to adjust their status. The IJ denied the Sarmientos’ applications and ordered them removed. He explained that he could not renew Leonida’s first application because it had not been properly filed in the first instance since it did not include evidence of her nursing certification. And, according to the IJ, Leonida was ineligible for adjustment of status under her second application because she filed it after living in the United States unlawfully for more than 180 days.

The Sarmientos appealed to the Board, arguing that their first application had been properly filed and that their unlawful presence in the United States for over 180 days was a result of an error by their former attorney. In June 2010, the Board dismissed the appeal, concluding that the Sarmientos had not shown that their counsel was ineffective and that the IJ was correct that they were not eligible to adjust status because they had been in the United States unlawfully for more than 180 days.

A month later, the Sarmientos moved for reconsideration, rehashing the arguments they had made in their initial submission to the Board. The Board denied the motion in December 2010, explaining that the motion failed to point out any errors of fact or law in the original dismissal. Nine months after the Board dismissed their original appeal but within 90 days of the Board’s denial of their motion to reconsider, the Sarmientos moved to reopen in March 2011. They contended, with supporting evidence, that they were newly eligible for adjustment of status because their daughter, a United States citizen who was now 21, had petitioned to adjust status on their behalf, and those petitions had been approved.

The Board determined that the motion was untimely and denied it. The Board explained that the motion was due within 90 days of its “final administrative order of removal,” which it said was the decision issued in June 2010 dismissing the Sarmientos’ appeal, not the later order in December denying their motion to reconsider. The Sarmientos then petitioned for review.

II. Analysis

The Immigration and Nationality Act provides that a “motion to reopen shall be filed within 90 days of the date of entry of a final administrative order of removal.” 8 U.S.C. § 1229a(c)(7)(C)(i) (emphasis added). The Sarmientos argue that the Board’s denial of their motion to reconsider was a final order of removal and that they may move to reopen the Board’s dismissal within 90 days of any final order of removal against them. They conclude, therefore, that the 90–day deadline for moving to reopen runs from the date that the court denied their motion to reconsider in December, making their March motion to reopen timely. The government responds that the Sarmientos’ motion was untimely because they had to move to reopen within 90 days of the specific order they were challenging—and that order, according to the government, was the Board’s initial dismissal of their appeal.

The INA’s time limit for moving to reopen is ambiguous. First, § 1229a(c)(7)(C)(i) does not state whether a motion to reopen may be filed within 90 days of any final order of removal, or must be filed within 90 days of the specific final order of removal that a party seeks to challenge. Second, the INA’s definition of when an order of removal becomes “final” has been interpreted in two ways. The INA itself provides that an order is final when either (1) the Board affirms the IJ’s removal order, or (2) the time to appeal the IJ’s removal order to the Board expires. 8 U.S.C. § 1101(a)(47)(B). (Section 1101(a)(47)(B) actually refers to an “order of deportation,” but that term is synonymous with “order of removal.” Viracacha v. Mukasey, 518 F.3d 511, 513–14 (7th Cir.2008).) Some decisions read this provision to limit “final” orders of removal to these two instances, see Ocampo v. Holder, 629 F.3d 923, 927 (9th Cir.2010), but others understand it to implicitly include orders disposing of motions to reopen and reconsider as “final” orders of removal, see, e.g., Bronisz v. Ashcroft, 378 F.3d 632, 636–37 (7th Cir.2004); Dave v. Ashcroft, 363 F.3d 649, 652 (7th Cir.2004); Chow v. INS, 113 F.3d 659, 663–64 (7th Cir.1997), abrogated on other grounds by LaGuerre v. Reno, 164 F.3d 1035 (7th Cir.1998); Cruz v. Attorney Gen., 452 F.3d 240, 246 (3d Cir.2006); Sarmadi v. INS, 121 F.3d 1319, 1321–22 (9th Cir.1997).

When a statute is ambiguous, courts must defer to an agency’s reasonable interpretation of the statute. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842–44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); Escobar v. Holder, 657 F.3d 537, 542 (7th Cir.2011); Dawoud v. Gonzales, 424 F.3d 608, 612 (7th Cir.2005). Here the Board’s regulation corresponding to § 1229a(c)(7)(C)(i) explains that a motion to reopen “must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened.” 8 C.F.R. § 1003.2(c)(2) (emphasis added). The Board was even more specific in In re Khan, 2007 BIA LEXIS 60 (BIA June 15, 2007). There, on facts nearly identical to this case, it held that the 90 days to file a motion to reopen a removal order runs from the date the Board dismissed the appeal of the IJ’s removal order, and not the date that the Board ruled on a motion to reconsider. Id. at *1 (citing Matter of L–V–K–, 22 I. & N. Dec. 976 (BIA 1999)). In re Khan is not a precedential Board decision, but it expressly relies on relevant Board precedent in reaching its decision and therefore is entitled to Chevron deference. See Escobar, 657 F.3d at 542; Arobelidze v. Holder, 653 F.3d 513, 519 (7th Cir.2011); Rohit v. Holder, 670 F.3d 1085, 1087–88 (9th Cir.2012); Quinchia v. U.S. Attorney Gen., 552 F.3d 1255, 1258 (11th Cir.2008).

The Board’s interpretation of the statute, requiring parties to move to reopen within 90 days of the Board’s initial dismissal, is reasonable. To conclude otherwise would allow aliens to receive extra time to move to reopen their cases by the simple expedient of filing frivolous motions to reconsider. Moreover, rejecting the Board’s interpretation would create a circuit split with the Fifth and Ninth Circuits. See Vega v. Holder, 611 F.3d 1168, 1170–71 (9th Cir.), petition for cert. filed, (U.S. Dec. 13, 2010) (No. 10–8010); William v. INS, 217 F.3d 340, 342–43 (5th Cir.2000). Those circuits decided that the Board reasonably interpreted the applicable regulation, 8 C.F.R. § 1003.2(c)(2) (formerly § 3.2(c)(2)), to require a motion to reopen to be filed within 90 days of the order it is challenging, and then reasoned that a motion to reopen can only target the Board’s original dismissal. We agree with this analysis.

The regulation states that the motion to reopen must be filed within 90 days of the specific proceeding being challenged. A motion to reopen cannot challenge an order disposing of a motion to reconsider because the motions have conflicting evidentiary requirements: A party must submit new evidence for a motion to reopen, see 8 U.S.C. § 1229a(c)(7); Munongo v. Gonzales, 479 F.3d 531, 534 (7th Cir.2007), whereas a party may not submit new evidence for a motion to reconsider, see 8 U.S.C. § 1229a(c)(6); Munongo, 479 F.3d at 534–35. Therefore, the Sarmientos’ motion to reopen (which included new evidence) can be seen only as a challenge to the underlying removal order, not the ruling on the motion to reconsider. See Vega, 611 F.3d at 1170–71 (stating that “offering new evidence through a motion to reopen the reconsideration proceeding would be inappropriate. The very purpose of a motion to reopen is to offer new evidence. The new evidence, therefore, can only pertain to the initial merits determination that the alien is removable.” (citation omitted)); William, 217 F.3d at 342 (“[B]ecause an alien who seeks to introduce new evidence can reopen only a proceeding that once was open for the receipt of evidence, the motion to reopen must look back to an evidentiary proceeding rather than to the denial of reconsideration.”) Because the Sarmientos’ moved to reopen more than 90 days after the Board dismissed their appeal of the IJ’s removal order, their motion is untimely.

This interpretation is consistent with how courts treat deadlines to petition for judicial review of Board decisions. The Supreme Court has held that a removal order is independent of a later order denying a motion to reconsider or reopen, and that therefore a motion to reconsider or reopen does not extend the time to appeal the underlying order. Stone v. INS, 514 U.S. 386, 394–95, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995). Following from Stone, a petition for review must be filed within the deadline running from “the specific order sought to be reviewed.” Nocon v. INS, 789 F.2d 1028, 1033 (3d Cir.1986) (emphasis in original); accord Muratoski v. Holder, 622 F.3d 824, 829–30 (7th Cir.2010); Youkhana v. Gonzales, 460 F.3d 927, 933–34 (7th Cir.2006); Asere v. Gonzales, 439 F.3d 378, 380–81 (7th Cir.2006); Toufighi v. Mukasey, 538 F.3d 988, 995 (9th Cir.2008); Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam). Because the time to petition for review is pegged to the order to be reviewed, then the Board has reasonably concluded that the time to move to reopen is pegged to the order to be reopened.

The Sarmientos insist that the Board’s interpretation is unreasonable. They contend that requiring a motion to reopen to be filed within 90 days of the order it seeks to challenge, rather than the last decision issued by the Board, unfairly limits their ability to file both a motion to reconsider and a motion to reopen. But the Board’s approach does not prohibit parties from moving both for reconsideration and reopening; it simply tightens the timeline for doing so. The approach is thus consistent with the purpose of the deadlines, which is to “expedite petitions for review” and prevent “successive and frivolous administrative appeals and motions.” Stone, 514 U.S. at 399–400.

The Sarmientos’ final argument is that even if they missed the 90–day deadline, it should have been equitably tolled. The government responds that the Sarmientos cannot raise this argument on appeal because they failed to exhaust their administrative remedies by not raising the issue before the Board. The Sarmientos reply that they invoked equitable considerations in their motion to reopen and that the Board addressed equitable considerations in its order.

The Sarmientos may not raise the issue of equitable tolling here. A party must exhaust all administrative remedies before seeking review by this court, and failure to raise a specific issue before the Board typically forecloses a party from raising it on appeal. Arobelidze, 653 F.3d at 516–17. In their brief to the Board, the Sarmientos did not mention equitable tolling (or a similar concept like equitable estoppel, see Socop–Gonzalez v. INS, 272 F.3d 1176, 1185 (9th Cir.2001)), nor did they cite any cases concerning equitable tolling. Their only allusion to equity, asking in their conclusion that their case be reopened “[i]n the exercise of justice and fairness,” was too vague. Their failure to invoke equitable tolling could be excused if the Board had nonetheless addressed the issue, see Arobelidze, 653 F.3d at 517, but it did not. The Board merely observed that the Sarmientos’ circumstances did not justify reopening on the Board’s own motion. The Sarmientos thus failed to exhaust their administrative remedies with respect to equitable tolling.

The petition for review is Denied.

TINDER, Circuit Judge.

Romeo Sarmiento v. Eric Holder, Jr.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Motion for Continuance, Motion to Reconsider, Motion to Reopen, Motions to Reopen | Tagged | Leave a comment

Proposed Provisional Unlawful Presence Waivers

Reminder: This proposed process is not in effect. To learn more, read this alert.

What USCIS Proposes

On March 30, 2012, U.S. Citizenship and Immigration Services (USCIS) posted a Notice of Proposed Rulemaking (NPRM) in the Federal Register requesting public comment on its plan to create an alternative process for certain immediate relatives of U.S. citizens to apply for and receive a provisional waiver of the unlawful presence ground of inadmissibility while still in the United States, if they can demonstrate that being separated from their U.S. citizen spouse or parent would cause that U.S. citizen relative extreme hardship. The goal of the proposed process change is to reduce the time that U.S. citizens are separated from their immediate relatives while those family members go through the consular process overseas to obtain an immigrant visa.

Currently, immediate relatives of U.S. citizens who have accrued a certain period of unlawful presence in the United States are barred from returning to the United States for as long as 3 or 10 years if they leave the country. Immediate relatives can obtain a waiver of the unlawful presence bar if they show that a U.S. citizen spouse or parent will experience extreme hardship if they are required to remain outside the United States. The immediate relative also would have to show that they warrant a favorable exercise of discretion.   But in order to obtain the waiver, these individuals must depart the United States and wait abroad while the waiver is processed.

Under the current process, therefore, U.S. citizens suffer unnecessarily long periods of separation while family members go through consular processing overseas to obtain an immigrant visa. The proposed process change lessens the length of separation by reducing inefficiencies in the current immigrant visa process. USCIS believes that this proposed change will streamline the immigrant visa process for immediate relatives whose only ground of inadmissibility is unlawful presence. USCIS plans to adjudicate the provisional waiver application in the United States before the immediate relative departs for his or her immigrant visa interview, which will reduce the length of time immediate relatives must spend abroad for consular processing.

What the Proposed Process Would Do

Under the proposed process, immediate relatives of U.S. citizens who would need a waiver of unlawful presence in order to obtain an immigrant visa could file a new Form I-601A, Application for Provisional Unlawful Presence Waiver, before leaving the United States to obtain an immigrant visa at a U.S. Embassy or Consulate abroad. All individuals eligible for this streamlined process are still required to depart the United States and must meet all legal requirements for issuance of an immigrant visa and admission to the United States.

An individual may seek a provisional unlawful presence waiver if he or she:

  • Is physically present in the United States;
  • Is at least 17 years of age;
  • Is the beneficiary of an approved immigrant visa petition (I-130) classifying him or her as an immediate relative of a U.S. citizen;
  • Is actively pursuing the immigrant visa process and has already paid the Department of State immigrant visa processing fee;
  • Is not subject to any other grounds of inadmissibility other than unlawful presence; and
  • Can demonstrate that the refusal of admission would result in extreme hardship to a U.S. citizen spouse or parent.

An immediate relative would not be eligible for the proposed process if he or she:

  • Has an application already pending with USCIS for adjustment of status to lawful permanent resident;
  • Is subject to a final order of removal or reinstatement of a prior removal order;
  • May be found inadmissible at the time of the consular interview for reasons other than unlawful presence; or
  • Has already been scheduled for an immigrant visa interview at a U.S. Embassy or Consulate abroad.

Allowing immediate relatives of U.S. citizens to receive provisional waivers in the United States before departure for their immigrant visa interview at a U.S. Embassy or Consulate means that:

  • Immigrant visa processing times will improve because of greater capacity in the United States and fewer case transfers between USCIS and the Department of State;
  • Immigrant visas will be issued without unnecessary delay (if the individual is otherwise eligible); and
  • The period of separation and hardship many U.S. citizens would face due to prolonged separation from their family members will be minimized.

Next Steps

This new process will be implemented only after USCIS publishes a final rule in the Federal Register with an effective date. USCIS will consider all comments received as part of the proposed rulemaking process before publishing the final rule. The current waiver process remains in place and will continue to remain for those who may not be eligible for a provisional waiver.

DO NOT file an application or request a provisional waiver at this time. Any applications filed with USCIS based on this NPRM will be rejected and the application package returned to the applicant, including any fees, until the final rule is issued and the change becomes effective.

Update: Please listen to USCIS public service announcment (also available in Spanish) and check out thier flyer to get the facts on the Proposed Provisional Unlawful Presence Waivers and how to avoid scams.

This page can be found at: http://www.uscis.gov/provisionalwaiver

Last updated: 05/11/2012

Related Links

  • Public Service Announcement: I-601 Provisional Waiver Is Not in Effect ( WAV)
  • Spanish-Language Public Service Announcement: Public Service Announcement: I-601 Provisional Waiver Is Not in Effect (8966KB WAV)
  • USCIS Proposes Process Change for Certain Waivers of Inadmissibility
    Proposal would reduc…
  • Provisional Unlawful Presence Waivers: Questions & Answers
  • Flyer: Proposed Provisional Unlawful Presence Waiver Is Not in Effect (1171KB PDF)
  • Flyer: Proposed Provisional Unlawful Presence Waiver Is Not in Effect (Spanish) (PDF)

    USCIS Proposes Process Change for Certain Waivers of Inadmissibility

    Released: March 30, 2012

    Proposal would reduce time that U.S. citizens are separated from immediate relatives

    WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) today posted a Notice of Proposed Rulemaking (NPRM) in the Federal Register  that would reduce the time U.S. citizens are separated from their spouses, children, and parents (i.e. immediate relatives) who must obtain an immigrant visa abroad to become lawful permanent residents of the United States. This rule would allow certain immediate relatives of U.S. citizens to apply for a provisional waiver of the unlawful presence ground of inadmissibility while still in the United States if they can demonstrate that being separated from their U.S. citizen spouse or parent would cause that U.S. citizen relative extreme hardship. The proposed rule will not alter how USCIS determines eligibility for a waiver of inadmissibility or how an individual establishes extreme hardship.

    “The law is designed to avoid extreme hardship to U.S. citizens, which is precisely what this proposed rule will more effectively achieve,” said USCIS Director Alejandro Mayorkas. “The current process can subject U.S. citizens to months of separation from family members who are waiting for their cases to be processed overseas.  The proposed change will have tremendous impact on families by significantly reducing the time of separation.”

    USCIS also proposes creating a new form for immediate relatives of U.S. citizens who choose to apply for a provisional unlawful presence waiver. Once in effect, this form would be used for individuals filing an application for a provisional unlawful presence application before he or she departs the United States to complete the immigrant visa process at a U.S. Embassy or consulate abroad. The streamlined process would only apply to immediate relatives who are otherwise eligible for an immigrant visa based on an approved immediate relative petition.

    The proposed process outlined above is not in effect and is not available until USCIS publishes a final rule with an effective date in the Federal Register. USCIS will consider all public comments on the proposed rule announced today before publishing the final rule in the coming months. Individuals at this time should not to submit an application for a provisional unlawful presence waiver, or allow anyone to submit one on their behalf because it will be rejected.

    USCIS encourages the public to submit formal input on the proposed rule through www.regulations.gov during a comment period that runs from April 2, 2012 until June 1, 2012.

    A detailed Web page  addressing the proposed rule is currently posted to http://www.uscis.gov/provisionalwaiver. Additional details on the proposed process changes will be available at www.regulations.gov on April 2, 2012. For more information on USCIS and its programs and services, please visit www.uscis.gov or follow on Twitter (@uscisExit Disclaimer), YouTube (/uscisExit Disclaimer) and the USCIS blog The Beacon.

Posted in I-601, Provisional Waivers, Waivers | Leave a comment

USCIS to Centralize Filing and Adjudication for Certain Waivers of Inadmissibility in the United States

New System Will Standardize Process for Immigrant Visa Applicants Worldwide

Released May 23, 2012

WASHINGTON—Beginning June 4, 2012, individuals abroad who have applied for certain visas and have been found ineligible by a U.S. Consular Officer, will be able to mail requests to waive certain grounds of inadmissibility directly to a U.S. Citizenship and Immigration Services (USCIS) Lockbox facility. This change affects where individuals abroad, who have been found inadmissible for an immigrant visa or a nonimmigrant K or V visa, must send their waiver applications.

Currently, applicants experience processing times from one-month to more than a year depending on their filing location. This centralization will provide customers with faster and more efficient application processing and consistent adjudication. It is part of a broader agency effort to transition to domestic filing and adjudication; it does not reflect a change in policy or the standards by which the applications are adjudicated. Individuals filing waiver applications with a USCIS Lockbox will now be able to track the status of their case online.

The change affects filings for:

Applicants who mail their waiver request forms should use the address provided in the revised form instructions on the USCIS website. Applicants who wish to receive an email or text message when USCIS has received their waiver request may attach Form G-1145, E-Notification of Application/Petition Acceptance, to their application.

During a limited six-month transition period, immigrant visa waiver applicants in Ciudad Juarez, Mexico, will have the option to either mail their waiver applications to the USCIS Lockbox in the United States or file in-person at the USCIS office in Ciudad Juarez. USCIS is aware of the pending caseload for applicants in Ciudad Juarez and is taking proactive steps to work through these cases. USCIS will significantly increase the number of officers assigned to adjudicate the residual cases filed before June 4, and those filed during the interim six-month transition period. USCIS has already begun to test this process and has transferred applications from Ciudad Juarez to other USCIS offices in the United States.

This change is separate and distinct from the provisional waiver proposal published in the Federal Register on Mar. 30, 2012.

Posted in Ciudad Juarez, I-601, Provisional Waivers, Waivers | Leave a comment

USCIS Issues Precedent Appeals Decision on P-3 Nonimmigrant Visa Petition: 25 I&N Dec. 799 (AAO 2012) Matter of SKIRBALL CULTURAL CENTER

Issuance Based on 2009 Petition by Los Angeles-based Skirball Cultural Center

(1) Congress did not define the term “culturally unique,” as used in section 101(a)(15)(P)(iii) of the Immigration and NationalityAct, 8U.S.C. § 1101(a)(15)(P)(iii) (2006), leaving reasonable construction of that term to the expertise of the agency charged with adjudicating P-3 nonimmigrant visa petitions.

(2) The term “culturally unique,” as defined at 8 C.F.R. § 214.2(p)(3) (2012), is not limited to traditional art forms, but may include artistic expression that is deemed to be a hybrid or fusion of more than one culture or region.

(3) As the regulatory definition provides for the cultural expression of a particular “group of persons,” the definition may apply to beneficiaries whose unique artistic expression crosses regional, ethnic, or other boundaries.

(4) The regulatory definition of “culturally unique” calls for a case-by-case factual determination.

(5) The petitioner bears the burden of establishing by a preponderance of the evidence that the beneficiaries’ artistic expression, while drawing from diverse influences, is unique to an identifiable group of persons with a distinct culture; it is the weight and quality of evidence that establishes whether or not the artistic expression is “culturally unique.”

Released May 15, 2012

WASHINGTON—U.S. Citizenship and Immigration Services’ (USCIS) Administrative Appeals Office (AAO) issued a binding precedent decision addressing the term “culturally unique” and its significance in the adjudication of petitions for performing artists and entertainers.

In the case at issue, the Skirball Cultural Center filed a P-3 nonimmigrant petition on behalf of a musical group from Argentina that was denied a performing artists’ visa for failing to establish that the group’s performance was “culturally unique” as required for this visa classification. Due to the unusually complex and novel issue and the likelihood that the same issue could arise in future decisions, the decision was recommended for review.

USCIS’s AAO approved the petition after its review of the entire record, which included expert written testimony and corroborating evidence on behalf of the musical group. The regulatory definition of “culturally unique” requires USCIS to make a case-by-case factual determination. The decision clarifies that a “culturally unique” style of art or entertainment is not limited to traditional art forms, but may include artistic expression that is deemed to be a hybrid or fusion of more than one culture or region.

Precedent decisions support USCIS’s commitment to consistency in the administration of immigration benefits. This is the third precedent decision issued since late 2010. Selected and designated as precedent by the Secretary of the Department of Homeland Security (DHS), with the Attorney General’s concurrence, precedent decisions are administrative decisions that are legally binding on DHS components responsible for enforcing immigration laws in all proceedings involving the same issue.

The Department of Justice’s Executive Office for Immigration Review (EOIR) publishes precedent decisions in bound volumes titled, “Administrative Decisions Under Immigration and Nationality Laws of the United States.”

Posted in "culturally unique”, AAO, BIA, Board of Immigration Appeals, DHS/AAO/Commissioner Decisions, P visa, Skirball Cultural Center | Tagged | Leave a comment