U.S. Supreme Court Says "No" To Immigrants Challenging Removal Proceedings

In a unanimous decision penned on May 21, 2012 by Justice Elena Kagan, the U.S. Supreme Court addressed whether a person in removal proceedings must qualify for the benefit of cancellation of removal by meeting the statutory requirements on his own, or whether some of the requirements may be imputed to him through those acquired by a parent. The decision turned on the interpretation of a statute that enables the Immigration Judge (IJ) to grant the request based on evidence of years of lawful permanent residence ("LPR") and time of continuous residence in the U.S.

In combining the analysis of two cases, the high court examined the facts of Mr. Martinez Gutierrez and Mr. Sawyers as they related to the provisions of 8 USC §1229(b). The controlling statute requires (1) lawful admission of at least 5 years, (2) continuous residence of 7 years in any legal status, and (3) absence of a criminal conviction termed as an aggravated felony. The Court focused on the first two requirements. In each case, the aliens failed to meet the first or second requirement, respectively, making it unnecessary for the Court to proceed to the third.

Martinez Gutierrez was brought to the U.S. in 1989 at age 5 but did not become an LPR until 2003. In 2005 he was caught smuggling aliens across the border. The IJ granted him cancellation relying on his father's LPR status since 1991 to meet the requirement of section 1229(b)(1). Such a favorable decision was based on imputing the requisite residence of the father to his son during the son's years of minority. The Board of Immigration Appeals ("BIA") reversed.

Sawyers became an LPR in October 1995 at age 15 but was convicted of a drug offense in August 2002. Although his mother had been in the U.S. after a legal entry for over six years, the IJ refused to consider this time period to the benefit of Sawyers, even though Sawyers himself was just a few months shy of meeting the continuous residence requirement of section 1229(b)(2). The BIA agreed that imputation of the residence was not permissible.

Both Martinez Gutierrez and Sawyers appealed to the Ninth Circuit Court of Appeals ("9th Cir.") which reversed, reasoning that the BIA's rejection of imputation was not reasonable because (1) immigration law gives priority to family unity considerations and (2) the BIA had applied imputation from parent to child in other areas of immigration law. The 9th Cir granted review in both cases, remanding to the BIA to reconsider its earlier decision.

The two cases made their way to the Supreme Court at the request of the government. In the 9 to 0 opinion the high court held that each person must satisfy the legal requirement of the law on his own. This is because the BIA interpretation of immigration law is given deference as long as it is reasonable. In these cases, the Court added, the BIA ruling is "based on a permissible construction" of the statute as the language does not mention imputation. For these reasons the Supreme Court let the BIA interpretation to stand, overruling the 9th Circuit.

The end result is that both Martinez Gutierrez and Sawyers will be removed from the U.S., despite close family ties to LPRs. However, there is another consideration at play here--public welfare and safety. Certain law violators are not welcome in the U.S. and will be removed whether or not their removal results in hardships to their family.

The outcome in this case is also a lesson for intending immigrants: process the entire family at the same time. It is not unusual for some to break up the process for financial reasons, while others often do it because they rely on services of those who can fill out the various immigration forms, but do not understand the implications of the underlying law eliciting the questions on the various applications and visa petitions. The result of such shortsighted service can cause irreparable damage, benefiting only some family members while leaving others to wait unnecessarily or to be permanently barred from the U.S.