2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-20-2008

Augustin v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 06-4744

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"Augustin v. Atty Gen USA" (2008). 2008 Decisions. Paper 1344.

http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1344
 Honorable Louis H. Pollak, Senior District Judge of the *

United States District Court for the Eastern District of

Pennsylvania, sitting by designation.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 06-4744

 

LUCKSON AUGUSTIN,

 Petitioner

v.

ATTORNEY GENERAL 

OF THE UNITED STATES,

 Respondent

 

Petition for Review of an Order of the

United States Department of Justice

Board of Immigration Appeals

(BIA No. A44-595-689)

Immigration Judge: Hon. Henry S. Dogin

 

Argued January 31, 2008

BEFORE: RENDELL and CHAGARES, Circuit Judges,

and POLLAK, District Judge *
2

(Filed: March 20, 2008)

Engy Abdelkader (Argued)

Legal Services of New Jersey

100 Metroplex Drive, Suite 402

Edison, NJ 08818

 Counsel for Petitioner

Peter D. Keisler

Douglas E. Ginsburg

John D. Williams (Argued)

U.S. Department of Justice

P.O. Box 878, Ben Franklin Station

Washington, D.C. 20044

 Counsel for Respondent

 

OPINION OF THE COURT

 

POLLAK, District Judge.

Luckson Augustin petitions for review of an order of the

Board of Immigration Appeals (“BIA”) concluding that he is

removable and ineligible for cancellation of removal. We are

called upon to decide whether the BIA erred in refusing to

impute to petitioner his father’s years of continuous residence in

order to meet the seven-year requirement for cancellation of

removal. 
 The I-261 indicates that, although DHS withdrew the charge 1

that petitioner had been convicted of an aggravated felony, DHS

did not withdraw the allegations supporting that charge. 

3

I.

Petitioner Luckson Augustin, born on August 24, 1981,

is a native and citizen of Haiti. He was admitted to the United

States as a lawful permanent resident (“LPR”) on February 24,

1995, at the age of thirteen. 

The Department of Homeland Security (“DHS”)

commenced removal proceedings against petitioner with a

notice to appear dated November 7, 2005, charging him as

removable for having been convicted of an aggravated felony.

See 8 U.S.C. § 1227(a)(2)(A)(iii). The notice alleged that

petitioner had been convicted of eluding police in New Jersey

and had been sentenced to three years imprisonment on August

19, 2005. 

On March 30, 2006, DHS filed an I-261 form

withdrawing the aggravated felony charge and replacing it with

charges that petitioner was removable on two other grounds: that

he had been convicted of two crimes involving moral turpitude,

and that he had been convicted of unlawful possession of a

firearm. See 8 U.S.C. §§ 227(a)(2)(A)(ii), (a)(2)(C). In support,

DHS made additional allegations that petitioner had been

convicted in New Jersey Superior Court on December 10, 2001,

of receiving stolen property and, on December 23, 2003, of

unlawful possession of a handgun.1
4

At a hearing before an immigration judge (“IJ”) on April

13, 2006, petitioner, represented by counsel, admitted the

government’s allegations. 

As evidence of petitioner’s convictions, the government

initially submitted the judgments of conviction for the weapon

and eluding police charges, but submitted only the criminal

complaint for the receiving stolen property charge. Upon the

IJ’s objection that he needed the judgment of conviction for the

receiving stolen property charge, the government submitted in

addition petitioner’s New Jersey rap sheet listing all of his New

Jersey convictions. The rap sheet indicates that petitioner was

arrested for receiving stolen property on March 25, 2000, found

guilty on December 10, 2001, sentenced on March 26, 2002, and

resentenced on April 25, 2003. 

At a hearing on May 11, 2006, the IJ, at petitioner’s

urging, granted petitioner’s counsel’s motion to withdraw from

the case. Petitioner then argued that he was eligible for

cancellation of removal despite having committed a crime of

moral turpitude in 2000, because he did not become removable

until being convicted of the gun charge in 2003 or his second

crime involving moral turpitude in 2005 — more than seven

years after his admission as an LPR. Cf. 8 U.S.C. § 1229b(a)(2)

(providing that an LPR is eligible for cancellation of removal

only after seven years of continuous residence and five years as

an LPR). The government responded that the commission of a

single crime involving moral turpitude “stops the clock”

accruing time toward the continuous residency requirement,

regardless of the existence of a second crime involving moral

turpitude rendering the alien removable. See 8 U.S.C.
 Noting that petitioner had not raised this argument before 2

the IJ, the BIA elected to consider it for the first time on appeal.

5

§ 1229b(d)(1). The IJ pretermitted petitioner’s application for

cancellation of removal.

At a subsequent hearing on petitioner’s application for

relief under the Convention Against Torture (“CAT”) on June

16, 2006, the IJ heard petitioner’s testimony regarding his fear

of returning to Haiti and received country reports in support of

petitioner’s application for CAT relief. Petitioner testified that

both of his parents were U.S. citizens, his mother having moved

to the United States in 1982 and his father in 1989. He testified

that his father, prior to obtaining citizenship, had been an LPR

starting in 1989. He further testified that his parents sponsored

him for LPR status, and that he obtained LPR status upon his

admission to the United States on February 24, 1995. In an oral

decision, the IJ found petitioner’stestimony credible, but denied

his CAT claim. 

On appeal to the BIA, petitioner, represented by counsel,

raised various arguments, including those he raises again on

appeal: (1) that the IJ erred in finding him ineligible for

cancellation of removal because a minor alien can count his

parents’ years as an LPR toward the statute’s seven-year

residency requirement, and (2) that petitioner’s conviction for 2

receiving stolen property (which cut off his accrual of time

toward the seven-year requirement) does not qualify as a

“conviction” for the purpose of removal because petitioner was

sentenced under a pre-trial diversion program. On October 13,

2006, the BIA affirmed the IJ in a four-page opinion. 
 Although the government has not raised this jurisdictional 3

issue, we of course have a duty to inquire into the basis for our

own jurisdiction. See Adapt of Philadelphia v. Philadelphia

Hous. Auth., 433 F.3d 353, 361 n.10 (3d Cir. 2006).

6

II.

We have jurisdiction over the legal question raised by

petitioner regarding his eligibility for cancellation of removal

pursuant to Congress’s grant of jurisdiction in 8 U.S.C.

§ 1252(a). 

We do not, however, have jurisdiction to consider

whether the BIA erred in finding petitioner removable on the

basis of his conviction for receiving stolen property, because the

question is moot. The IJ held and BIA affirmed that petitioner

was also removable as charged with having been convicted of a

firearm offense. Because petitioner does not challenge that

ground of removal, his order of removal will stand without

regard to whether the stolen property conviction properly

qualifies as a ground of removal.3

We review legal questions de novo, but “defer to the

BIA’s reasonable interpretations of statutes it is charged with

administering.” Silva-Rengifo v. Att’y Gen., 473 F.3d 58, 63

(3d Cir. 2007) (citing INS v. Aguirre-Aguirre, 526 U.S. 415, 424

(1999); Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc.,

467 U.S. 837, 842-43 (1984)). 
7

III.

The question before the court is whether the BIA erred in

refusing to impute to an alien who entered the United States as

a minor the alien’s parent’s years of continuous residence in

order to meet the seven-year requirement for cancellation of

removal. 

The Immigration and Nationality Act (“INA”), as

amended by the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (“IIRIRA”), Pub L. No.104-208,

Div. C, 110 Stat. 3009-546, provides that, for permanent

residents, “[t]he 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(a). Under the INA, “‘admission’ and

‘admitted’ mean, with respect to an alien, the lawful entry of the

alien into the United States after inspection and authorization by

an immigration officer.” Id. § 1101(a)(13). The INA defines

“residence” as “the place of general abode; the place of general

abode of a person means his principal, actual dwelling place in

fact, without regard to intent.” Id. § 1101(a)(33). The statute
8

further provides that an alien’s period of continuous residence

for the purpose of meeting the residency requirement ends upon

the issuance of a notice to appear or upon the commission of a

crime that would render the alien inadmissible. Id.

§ 1229b(d)(1).

The BIA’s interpretation of the INA in an opinion

dismissing an alien’s appeal is entitled to Chevron deference.

See Sun Wen Chen v. Att’y Gen., 491 F.3d 100, 106 (3d Cir.

2007). Under Chevron, in reviewing an agency’s construction

of a statute administered by the agency, the court “ask[s] first ‘if

the statute is silent or ambiguous with respect to the specific

issue’ of law in the case,” using “‘traditional tools of statutory

construction’ to determine whether ‘Congress had an intention

on the precise question at issue.’” Id. (quoting Chevron U.S.A.,

Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 & n.9

(1984)). If Congress’s intention is not evident, the court

“move[s] to the second step, where ‘the question for the court is

whether the agency’s answer is based on a permissible

construction of the statute.’ When Congress has left a gap in a

statute, implicitly leaving the administering agency responsible

for filling that gap, ‘a court may not substitute its own

construction of a statutory provision for a reasonable

interpretation made by the administrator of an agency.’” Id.

(quoting Chevron, 467 U.S. at 834-44 & n.9). 

According to petitioner’s testimony, which was

uncontradicted and which the IJ accepted, petitioner was

admitted to the United States as an LPR in 1995, at the age of

thirteen. In immigrating to the United States, he joined his

parents; his father had obtained LPR status in 1989, and both his
9

parents were eventually naturalized as U.S. citizens. Petitioner’s

commission of a crime involving moral turpitude in 2000 cut off

his accrual of years of continuous residence for the purpose of

becoming eligible for cancellation of removal. Petitioner

contends that, because he was a minor when he was first

admitted to the United States in 1995, his father’s preceding

years of continuous residence, commencing in 1989, should be

imputed to him for the purpose of meeting the seven-year

requirement. 

The BIA held that petitioner was not eligible for

cancellation of removal because, under the INA’s definitions of

“residence” and “admitted,” petitioner had not resided in the

country for the requisite seven years following admission. The

BIA declined to impute petitioner’s father’s years of residence

to petitioner because doing so did not accord with “the clear

statutory dictates of the residency requirements for

cancellation.” In so holding, the BIA rejected the reasoning of

Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir. 2005), in

which a divided panel of the Ninth Circuit held that, under the

cancellation provision, a parent’s preceding years of residence

in the United States are imputed to a minor child for the purpose

of meeting the seven-year residency requirement. The Ninth

Circuit held that the BIA’s disallowing such imputation was

unreasonable because it was inconsistent with the facts that “our

immigration statutes and regulations are replete with provisions

giving a high priority to the relation between permanent resident

parents and their children” and 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.” Id. at
 The Cuevas-Gaspar court also considered whether IIRIRA’s 4

legislative history supported the BIA’s interpretation. Finding

no explanation in the legislative history for IIRIRA’s

introduction of the seven-year “residence” requirement, the

court speculated that Congress intended to resolve a conflict

between the BIA and the courts of appeals over whether the

seven years of “domicile” required under the former INA

§ 212(c) repealed by IIRIRA had to follow attainment of LPR

status, or whether it was sufficient simply to have attained LPR

status at some point; the cancellation of removal provision

resolves this question by expressly requiring five years of LPR

status and seven years of continuous residence. Cuevas-Gaspar,

430 F.3d at 1027-28. 

10

1024 (internal quotation marks omitted). Judge Fernandez 4

dissented, finding that the cancellation of removal provision

“could not be more clear” in requiring seven years of actual

residence, and that, “[e]ven if one could argue that the statute is

ambiguous, the BIA’s interpretation is quite reasonable, and to

that we must defer.” Id. at 1032. 

Since dismissing petitioner’s appeal in the instant case,

the BIA has again repudiated the holding in Cuevas-Gaspar. In

In re Escobar, 24 I. & N. Dec. 231 (BIA 2007), the petitioner

had arrived as a young child with her mother in the early 1980s

and was admitted to LPR status in 2003; her mother became an

LPR earlier, in 1992. See id. at 231. At the time of her removal

proceedings in 2006, Escobar had not accrued the five years of

LPR status required for cancellation of removal. See 8 U.S.C.

§ 1229b(a)(1). Despite the fact that the case arose in the Ninth

Circuit, where Cuevas-Gaspar requires the BIA to impute a
 As we discuss further below, imputation under the former 5

INA § 212(c) hinged on the ambiguous term “domicile” in that

provision, a term replaced by “residence” in the current

cancellation of removal provision. The government has not

contended before us that Congress in IIRIRA eliminated the

word “domicile” in favor of “residence” in order to eliminate

imputation, and IIRIRA’s legislative history does not provide

11

minor alien’s parent’s years of residence to the minor alien for

the purpose of meeting the residency requirement for

cancellation of removal, the BIA refused to impute Escobar’s

mother’s years of LPR status to Escobar in order to meet the

five-year LPR status requirement: “[I]mputing a parent’s status

and residence to allow a child to meet the requirements of both

sections 240A(1) and (2) of the Act would essentially destroy

the distinct tests mandated by Congress when it amended the

statute to replace the former section 212(c) waiver with

cancellation of removal.” 24 I. & N. Dec. at 234-35; see also id.

at 235 (stating that the BIA would not follow Cuevas-Gaspar

outside the Ninth Circuit).

The INA as amended by IIRIRA does not expressly

address the question whether parents’ years of residence may be

imputed to their minor children for the purpose of meeting the

seven-year requirement for cancellation of removal. The

cancellation of removal provision neither provides for such

imputation nor disallows it. Furthermore, we have been unable

to find in IIRIRA’s legislative history any indication of

Congress’s intention regarding imputation — which, prior to

IIRIRA’s enactment, some courts had read into the former INA

§ 212(c), a relief provision repealed by IIRIRA. See Cuevas- 5
support for such an inference. Accordingly, we decline to

speculate along those lines.

12

Gaspar, 430 F.3d at 1022-24 & n.7 (describing pre-IIRIRA

cases). In short, in Chevron terms, “the statute is silent . . . with

respect to the specific issue.” Chevron, 467 U.S. at 843.

Accordingly, we move to Chevron’s second step, where

we must affirm the BIA’s interpretation as permissible. The

BIA declined to impute petitioner’s father’s years of residence

to petitioner because doing so would violate the statute’s clear

requirements for cancellation of removal. The statute requires

seven years of continuous “residence,” and “residence” is

defined as a person’s “principal, actual dwelling place in fact,

without regard to intent.” 8 U.S.C. § 1101(a)(33). It is

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. The BIA’s denial of cancellation of

removal on this ground — and its refusal to impute to petitioner

his father’s years of residence — is permissible because it is a

straightforward application of the statute’s requirements. We

cannot find the BIA unreasonable for failing to read into the

statute an exception seemingly at odds with the statute’s

requirements.

We are not convinced by petitioner’s contentions,

echoing the Ninth Circuit’s opinion in Cuevas-Gaspar, that the

BIA’s interpretation is unreasonable because it conflicts with (1)

the high priority the INA otherwise places on relations between

LPR parents and their minor children; (2) the BIA’s prior
 See, e.g., H. Rep. 104-469, Part I, at 108 (1996) (House 6

Judiciary Committee report deeming a high priority uniting

“nuclear” families of spouses and minor children, possibly at the

expense of letting in fewer adult “extended family” members).

13

interpretation of the immigration laws and regulations as

allowing for imputation of parents’ statuses to their minor

children; and (3) the provision’s purpose of providing relief for

aliens who have developed close ties to the United States. Nor

are we persuaded to grant the petition on the strength of our

reasoning in Morel v. INS, 90 F.3d 833 (3d Cir. 1996), vacated

on other grounds, 144 F.3d 248 (3d Cir. 1998), where we

addressed imputation under the former INA § 212(c).

First, although we agree that the BIA’s interpretation

does not further the goal of maintaining the relationships

between LPR parents and their minor children, and although the

legislative history of IIRIRA does reflect Congress’s continuing

acknowledgment of that general goal, we cannot on the basis of 6

that general policy goal alone find unreasonable the BIA’s

unwillingness to read into the statute an exception to the

requirements for cancellation of removal for minors whose LPR

parents preceded them in immigrating to the United States. The

requirements for cancellation of removal are clear. Congress

could have provided that LPR parents’ years of residence would

be imputed to their minor children. But Congress has not done

so.

With regard to the second argument, that “the BIA’s

refusal to impute a parent’s permanent resident status here

conflicts with the BIA’s consistent willingness to impute a
14

parent’s intent, state of mind, and status to a child,” CuevasGaspar, 430 F.3d at 1026, we cannot agree with the Ninth

Circuit that the BIA’s interpretation of the cancellation

provision unreasonably conflicts with the BIA’s prior decisions

on imputation. The three cases cited by the Ninth Circuit, see

id., form a line of cases concerning a single fact pattern: Where

a child leaves the country and his or her parent has abandoned

permanent residence in the United States, the parent’s intention

to abandon residence in the United States is imputed to the

child. See Matter of Huang, 19 I. & N. Dec. 749, 750 n.1 (BIA

1988) (following Matter of Winkens, 15 I. & N. Dec. 451, 452

(BIA 1975) (“[The parents’] abandonment of their lawful

permanent resident status is imputed to the respondent, who was

subject to their custody and control. He had gained lawful

permanent resident status through them, and he lost it when they

abandoned their residence and took him with them.”)); Matter

of Zamora, 17 I. & N. Dec. 395, 396 (BIA 1980) (“We hold that

this voluntary and intended abandonment by the mother is

imputed to the applicant, who was an unemancipated minor at

the time he was sent back to Mexico by his mother, and at the

time his mother abandoned her lawful resident status.”). These

cases are not in direct conflict with the BIA’s interpretation of

the cancellation statute because the determination in these cases

turned in part on the minor alien’s intention: Part of the test for

whether an alien has abandoned his status as an LPR is whether

he intended to return to the United States during his sojourn

abroad. See Chavez-Ramirez v. INS, 792 F.2d 932, 937 (9th Cir.

1986). Accordingly, a parent’s intention to stay abroad or return

to the United States was imputed to the minor child because the

child was presumed to be under his parents’ control and unable

to form a meaningful intention. By contrast, determining where
Although § 212(c) was, by its terms, only applicable in 7

exclusion proceedings for inadmissible aliens, it was eventually

construed to create discretionary relief in deportation

proceedings as well. See INS v. St. Cyr, 533 U.S. 289, 295

(2001). 

15

a minor “resides” within the meaning of the INA — a

determination made “without regard to intent,” 8 U.S.C.

§ 1101(a)(33) — presents no such question regarding a minor’s

intention.

Third, we cannot find the BIA’s interpretation

unreasonable for conflicting with the ameliorative purpose of

cancellation of removal. Although the BIA’s ruling does deny

relief to certain aliens, that alone cannot render the BIA’s

interpretation unreasonable. Congress restricted relief to those

aliens who had accrued seven years of continuous residence in

addition to five years of LPR status. The BIA’s refusal to create

an exception simply heeds the statute’s plain requirements.

Finally, we find the line of cases addressing imputation

under the former INA § 212(c) inapposite to the question before

us. Before IIRIRA’s enactment, the INA provided that the

Attorney General had discretion to waive deportation for

permanent residents who had “a lawful unrelinquished domicile

of seven consecutive years” in the United States. INA § 212(c),

8 U.S.C. § 1182(c) (1995) (repealed 1996). The term 7

“domicile” was not defined in the INA. The Second and Ninth

Circuits — and this Court, in a decision thereafter vacated —

ruled that “domicile” should be defined in accordance with the

common law, under which a child’s domicile is thought to
16

follow that of the child’s parents because a “domiciliary” is

defined by the intention to return to the domicile during any

absence therefrom, and children are presumed incapable of

forming such an intention. Therefore, it was held, a minor

alien’s years of domicile in the United States began when his

parents established their domicile here, despite the fact that the

minor alien did not arrive until later. See Morel, 90 F.3d at 841;

Lepe-Guitron v. INS, 16 F.3d 1021, 1025 (9th Cir. 1994);

Rosario v. INS, 962 F.2d 220, 224 (2d Cir. 1992) (citing Miss.

Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989)

(“Since most minors are incapable of forming the requisite

intent to establish a domicile, their domicile is determined by

that of their parents.”)). 

Unlike the former § 212(c), the current cancellation of

removal provision does not contain the term “domicile,” which

was the statutory basis for imputing a minor alien’s parents’

years in the United States to the minor alien in accordance with

the common law. To the contrary, the current cancellation

provision contains the word “residence,” defined as an alien’s

“principal, actual dwelling place in fact, without regard to

intent.” 8 U.S.C. § 1101(a)(33). Under the former § 212(c),

petitioners benefitted from the canon of statutory interpretation

that “where Congress borrows terms of art in which are

accumulated the legal tradition and meaning of centuries of

practice, it presumably knows and adopts the cluster of ideas

that were attached to each borrowed word” — including, in the

case of “domicile,” that a child’s domicile would follow that of

his parents. See Valansi v. Ashcroft, 287 F.3d 203, 218 (3d Cir.

2002) (quoting Morrissette v. United States, 342 U.S. 246, 263

(1952)). However, the cancellation of removal provision
17

contains no such undefined term, and we cannot find

unreasonable the BIA’s straightforward application of the

cancellation of removal provision’s requirements. 

IV.

For the reasons given above, we do not find the BIA’s

interpretation of the cancellation of removal provision

unreasonable. We will therefore DENY the petition for review.