IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-60923

LONISE DEUS

Petitioner

v.

ERIC H. HOLDER, Jr., United States Attorney General

Respondent

 Petition for Review of an Order of the Board of Immigration Appeals

Before GARWOOD, DAVIS, and DENNIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Petitioner, Lonise Deus, appeals from a final decision of the Board of

Immigration Appeals that Petitioner is not eligible for cancellation of removal

based on her failure to establish the required period of residency under INA

Section 240A(a), 8 U.S.C. § 1229(a). We affirm. 

I. 

Deus is a native and citizen of Haiti where she was born on August 28,

1978. She entered the United States on November 8, 1979, illegally without

inspection but apparently with her mother. Her mother was granted permanent

resident status on that date when Deus was one year old. On May 10, 1996,

when Deus was 17, she adjusted her status to that of a lawful permanent

United States Court of Appeals

Fifth Circuit

F I L E D

December 23, 2009

Charles R. Fulbruge III

Clerk
No. 08-60923

2

resident. On May 5, 1999, Deus was convicted in Florida of two felony offenses:

fraudulent use of a credit card and grand theft. Both are third degree felonies

for which a sentence of one year or more could have been imposed. Deus was

sentenced to six months deferred adjudication. 

On March 25, 2005, Deus applied for naturalization with the U.S.

Citizenship and Immigration services (“CIS”) of the Department of Homeland

Security (“DHS”). On May 1, 2006, the CIS denied the application because Deus

did not establish good moral character. On June 19, 2006, removal proceedings

were commenced against Deus by issuance of a Notice to Appear, alleging that

she was subject to removal pursuant to 8 U.S.C. § 1227(a)(2)(A)(I), as an alien

convicted within 5 years of admission of a crime involving moral turpitude for

which a sentence of one year may be imposed. 

Deus attempted to seek cancellation of removal for lawful permanent

residents under 8 U.S.C. § 1229b(a), alleging that she could establish the

required 7 years of continuous residence after admission in any status by

imputing her mother’s residence to her. The statute she relies on provides:

(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.

8 U.S.C. § 1229b.

The Immigration Judge (“IJ”) rejected this argument and the rationale of

the Ninth Circuit case, Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir.

2005), on which Deus relied, finding that such imputation was not allowed by

the language of the statute. Accordingly, the IJ denied Deus’ application for
No. 08-60923

 INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999) (“It is clear that principles of Chevron 1

deference are applicable to this statutory scheme. The INA provides that ‘the Attorney

General shall be charged with the administration and enforcement’ of the statute and that the

“determination and ruling by the Attorney General with respect to all questions of law shall

be controlling.” 8 U.S.C. § 1103(a)(1) (1994 ed., Supp. III). . . . The Attorney General, while

retaining ultimate authority, has vested the BIA with power to exercise the ‘discretion and

authority conferred upon the Attorney General by law’ in the course of “considering and

determining cases before it” 8 CFR § 3.1(d)(1) (1998). Based on this allocation of authority,

we recognized in Cardoza-Fonseca, supra, that the BIA should be accorded Chevron deference

as it gives ambiguous statutory terms ‘concrete meaning through a process of case-by-case

adjudication’. 480 U.S. at 448-449.”)

3

cancellation of removal. Deus then appealed to the Board of Immigration

Appeals (“BIA”), which denied her appeal. The BIA explained that Deus’

position was foreclosed by its precedent, and held that a parent’s residence in the

United States could not be imputed to an unemancipated minor to establish

eligibility for cancellation of removal under that statute. Deus appeals. 

II. 

This court reviews legal issues like the interpretation of statutes de novo.

Applying Chevron, U.S.A., Inc. v. NRDC., 467 U.S. 837 (1984), we subject the

BIA’s construction of the law it administers to a deferential review. De Fuentes

v. Gonzales, 462 F.3d 498, 502 (5th Cir. 2006). 

1

This review involves a two-step inquiry. First, we ask whether

Congress has directly spoken to the precise question at issue. If

Congress’ intent is clear, the agency and the courts are bound to

give effect to it. If the statute is silent or ambiguous with respect to

the specific issue, we ask the second question, whether “the agency’s

answer is based on a permissible construction of the statute.” 

Id. (internal citations omitted). When determining whether “the agency’s

answer is based on a permissible construction of the statute”, the Court “need

not conclude that the agency construction was the only one it permissibly could

have adopted, . . . or even the reading the court would have reached if the

question initially had arisen in a judicial proceeding.” Chevron, 467 U.S. at 843

n.11. 
No. 08-60923

 She achieved legal permanent residency in May 1996, more than 5 years before she

2

applied for citizenship in March 2005. 

4

III. 

As indicated above, Deus argues that the BIA erred in concluding that she

was not eligible for cancellation of removal under § 1229b(a). Section 1229b(a)

has three requirements for a permanent resident to be eligible for cancellation

of removal: (1) lawful admission for permanent residence for not less than 5

years, (2) continuous residence in the United States for 7 years after admission

in any status, and (3) no conviction of any aggravated felony. The immigration

judge found that there is no question that Deus has been lawfully admitted as

a permanent resident for not less than 5 years and that she has not been

convicted of an aggravated felony. The only issue in this case is whether Deus 2

can demonstrate that she resided in the United States for a continuous seven

year period after being admitted in any status. This requirement is at issue

because, under 8 U.S.C. § 1229b(d)(1), a petitioner’s period of continuous

residence as required under § 1229b(a)(2) is deemed to end when, within five

years after admission, the alien commits an offense involving moral turpitude

for which a sentence of one year may be imposed. 8 U.S.C. § 1227(a)(2)(A)(i)(I).

Petitioner raises no issue related to whether her convictions fall within this

category. 

The Immigration Judge found and the BIA agreed that because Deus

entered the U.S. illegally, she was not “admitted in any status” until she

adjusted her status to that of a lawful permanent resident on May 10, 1996. Her

period of continuous residence was terminated when she committed a crime of

moral turpitude on July 15, 1998, resulting in a period of residence far shorter

than the required seven years. 

Deus argues that she can meet the period of residency if her mother’s

period of lawful residence is imputed to her. The Ninth Circuit accepted this
No. 08-60923

5

argument in Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir. 2005). CuevasGaspar, like Deus, entered the United States with his parents when he was one

year old. His mother later attained permanent resident status in 1990, when

Cuevas was seven years old. Cuevas attained permanent resident status in

1997. In 2002, he pled guilty to being an accomplice in a residential burglary,

which the Ninth Circuit held was a crime of moral turpitude. As in this case, the

BIA rejected the argument that the petitioner satisfied the seven-year

continuous residence requirement for cancellation of removal based on his

presence as a minor child living with his lawfully-admitted parents. The Ninth

Circuit recognized that Cuevas did not have lawful status prior to 1997.

However, it held that he was eligible for cancellation of removal based on the

imputation of his mother’s period of residence while he was a minor from, 1990

until 2002. 

The Ninth Circuit declined to give Chevron deference to the BIA’s position.

The court started with its decision in Lepe-Guitron v. INS, 16 F.3d 1021 (9th Cir.

1994), which held that “because a child’s domicile follows that of his or her

parents, the parents’ domicile in the United States is imputed to the parents’

unemancipated minor child for purposes of the seven years ‘lawful

unrelinquished domicile’ required for discretionary waiver under the nowrepealed INA § 212(c).” Id. at 1021. In Lepe-Guitron the Ninth Circuit observed

that “immigration statutes and regulations are replete with provisions ‘giving

a high priority to the relation between permanent resident parents and their

children,’” Id. at 1024. 

Section 212(c), which is the statute interpreted in Lepe-Guitron, is the

predecessor to the statute at issue in this case, § 1229b(a). Section 212(c)

required a period of “lawful unrelinquished domicile” in order to qualify for relief

from removal, whereas cancellation of removal under § 1229b(a) requires a

period of residence “after having been admitted in any status.” Id. (underlining
No. 08-60923

6

added). The term “admitted” is a defined term in the INA, defined as “the lawful

entry of the alien into the United States after inspection and authorization by

an immigration officer.” Id. at 1022; 8 U.S.C. § 1101(a)(13). The Ninth Circuit

rejected the BIA’s argument that the requirement of admission into and

residence in the United States, unlike domicile, does not depend on intent or

capacity making imputation inapplicable to the new statute. Neither the statute

nor the legislative history reveals why Congress changed the residency

requirement from the “lawful unrelinquished domicile of seven consecutive

years” under § 212 (c) to the requirements now in § 1229b(a) (permanent

residence for five years or continuous residence after admission in any status for

seven years). Id. The Ninth Circuit concluded that “the change in residency

requirement was intended to clear up a longstanding disagreement between the

various courts of appeals and the BIA regarding the type of status necessary to

qualify for relief under former 212(c).” Id. A later decision by the Ninth Circuit

describes its decision in Cuevas-Gaspar as imputing the parent’s admitted status

to the minor child. Angel Wilfredo Barrios v. Eric H. Holder, 2009 U.S. App.

LEXIS 14147 (9th Cir. June 26, 2009). 

At least one circuit court appears to agree with the BIA’s position. In

Augustin v. AG of the United States, 520 F.3d 264 (3d Cir. 2008), the Third

Circuit held that the BIA’s denial of cancellation of removal and its refusal to

impute the father’s years of residence was proper because it was a

straightforward application of the statute’s requirements. However in that case,

the decision may have rested in part on the facts presented. Section 1229b(a)

requires seven years of continuous residence, which is defined at 8 U.S.C. §

1101(a)(33) as a person’s “principal, actual dwelling place in fact, without regard

to intent.” In Augustin, it was “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.”
No. 08-60923

7

Id. at 269-70. Rather Augustin’s parent had preceded him into the United

States. The Third Circuit found that the goal of maintaining relationships

between legal permanent resident parents and their minor children could not

alone form the basis to find the BIA’s unwillingness to read into the statute an

exception to the requirements for cancellation of removal for minors whose

parents precede them in immigrating to the United States. Id. at 270. 

Although Deus’ facts are distinguishable from those in Augustin, in that

it appears that she did actually reside in the United States with her legal

permanent resident parent while a minor, the Third Circuit also rejected other

arguments that form the basis of the Cuevas-Gaspar decision on which Deus

relies. It found no inconsistency between the BIA’s refusal to impute a parent’s

permanent resident status and its consistent willingness to impute a parent’s

intent, state of mind, and status to a child, because the relevant inquiry under

§ 1229b(a), residence, presents no question regarding a minor’s intention.

Similarly, it found no correlation to cases interpreting former § 212 (c), because

§ 212(c) contained the term “domicile” which incorporates intent, whereas the

current cancellation of removal provision rests on “residence” which is

determined without regard to intent. 

The Ninth Circuit’s approach would take into account the fact that Deus

has been in the United States since she was one year old, for a period during

which she did not have control over her immigration status. However given the

absence of support in the statutory language or legislative history that such time

was intended to be counted towards the requirements of § 1229b(a), the BIA’s

interpretation is not inconsistent with the statute and therefore permissible

under Chevron’s deferential review. In short, § 1229b(a)(2) only counts the

period of continuous residence in the United States after the petitioner has “been

admitted in any status.” Because Deus first entered the U.S. illegally, she was

not “admitted” as that term is statutorily defined as requiring “inspection and
No. 08-60923

8

authorization by an immigration officer” until she was admitted as a legal

permanent resident in 1996. Her conviction in 1999 cut off her period of

residency, which was then too short to qualify for cancellation of removal under

§ 1229b(a). In addition, we find persuasive the rationale of the Third Circuit in

Augustin rejecting the arguments relied upon by Deus and the Ninth Circuit in

taking the opposite position.

IV. 

For the foregoing reasons, the order of the BIA is AFFIRMED.