Holder v. Gutierrez consolidated with Holder v. Sawyers
January 18, 2012
Case #: 10-10-1542 and 10-1543
United States Court of Appeals for the Ninth Circuit
Full Text Opinion: http://www.bloomberglaw.com/public/document/Gutierrez_v_Holder_411_Fed_Appx_121_9th_Cir_2011_Court_Opinion
Immigration: Whether the years that a person's parents are in the United States legally can be applied to the years required for that person to meet the seven year requirement of 8 U.S.C. 1229b(a)(2) for cancellation of removal.
Holder v. Gutierrez
In 1991 when Gutierrez was 7 years old and residing with his parents his father obtained the status of legal permanent resident (“LPR”). In 2003 when he was 19 Gutierrez obtained LPR status himself. In 2005 Gutierrez was caught smuggling aliens across the border from Mexico and removal proceedings were started. An immigration judge (“IJ”) found Gutierrez eligible for cancellation of removal under 8 U.S.C. 1229b(a)(1). This statute requires that a person be a LPR for five years and they must reside in the United States for seven years. The IJ applied Cuevas-Gaspar v. Gonzales 430 F.3d 1013 (9th Cir. 2005), and permitted the years that Gutierrez resided with his parents to count for the five and seven year periods. The Board of Immigration Appeals (“Board”) reversed the IJ’s decision and remanded, refusing to extend Cuevas-Gaspar to section 1229b. On remand the IJ issued a removal order and the Board affirmed the order. The Ninth Circuit reversed and remanded based on its intervening decision in Mercado-Zazueta v. Holder 580 F.3d 1102 (2009) that extended Cuevas-Gaspar to 1229b.
Holder v. Sawyers
In October 1995 Sawyers was given LPR status at the age of 15. Sawyers mother was already in the United States and under LPR status. In August 2002 Sawyer was convicted of maintaining a dwelling for keeping of a controlled substance. In December 2005 he was convicted of possession of a controlled substance and removal proceedings were started. An IJ found Sawyer removable and found that Sawyer’s 2002 conviction stopped the time period for section 1229b(a)(1) cancellation of removal. The Board agreed but noted the the IJ did not address the time of Sawyer’s mothers residence; however, the Board said that the omission was harmless. The Ninth Circuit reversed and remanded based on its intervening decision in Mercado-Zazueta v. Holder 580 F.3d 1102 (2009) that extended Cuevas-Gaspar to 1229b.
The petitioner argues that the Ninth Circuit’s rule allowing the time period for cancellation under 8 U.S.C. 1229b(a)(1) to include the parent’s period of lawful residence is contrary to the plain language of the statute, legislative history and the Board’s interpretation of the statute.