FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANGEL WILFREDO RAMOS BARRIOS,  No. 06-74983

Petitioner, Agency No.

v. A078-311-822 

ERIC H. HOLDER JR., Attorney ORDER AND

General, AMENDED

Respondent. OPINION 

On Petition for Review of an Order

of the Board of Immigration Appeals

Submitted December 8, 2008*

Pasadena, California

Filed May 27, 2009

Amended June 26, 2009

Before: Before: Jerome Farris, Susan P. Graber,** and

Kim McLane Wardlaw, Circuit Judges.

Opinion by Judge Wardlaw

*The panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2).

**Judge Susan P. Graber was drawn to replace Judge William W

Schwarzer pursuant to General Order 3.2(g). Judge Graber has read the

briefs and reviewed the record. 

8023
COUNSEL

Areg Kazaryan, Law Offices of Areg Kazaryan, Glendale,

California, for petitioner Angel Wilfredo Ramos Barrios.

John W. Blakely, Office of Immigration Litigation, Civil

Division, U.S. Department of Justice, Washington, D.C., for

respondent Attorney General Holder. 

8026 RAMOS BARRIOS v. HOLDER
ORDER

The opinion filed May 27, 2009, is amended as follows:

Slip op. at 6280 n.5: Delete the last sentence of the footnote,

which reads: <Although Ramos-Lopez arguably misread

Santos-Lemus as applying Chevron deference, its ultimate

conclusion was not affected, as Santos-Lemus is entirely consistent with Matter of S-E-G-.>

This amendment does not change the deadline for filing a

petition for panel rehearing or suggestion for rehearing en

banc.

OPINION

WARDLAW, Circuit Judge:

Angel Wilfredo Ramos Barrios (“Ramos”), a native and

citizen of Guatemala, petitions for review of the Board of

Immigration Appeals’ (“BIA”) affirmance of the immigration

judge’s (“IJ”) denial of his application for asylum, withholding of removal, relief under the Convention Against Torture

(“CAT”), and special rule cancellation of removal under section 203 of the Nicaraguan Adjustment and Central American

Relief Act (“NACARA” or “the Act”). Following our recent

precedent, we hold that Ramos is ineligible for asylum and

withholding of removal because his refusal to join a gang

does not make him a member of a particular social group or

constitute a political opinion. We also hold as a matter of first

impression that Ramos is not entitled to NACARA relief

because a minor who seeks relief as a derivative must personally satisfy the Act’s requirement of seven years of continuous physical presence. Ramos’s father’s physical presence in

the United States cannot be imputed to him to satisfy this

requirement. We do not reach Ramos’s CAT claim because it

RAMOS BARRIOS v. HOLDER 8027
was waived. We have jurisdiction pursuant to 8 U.S.C.

§ 1252, and we deny the petition.

I. FACTUAL AND PROCEDURAL BACKGROUND

Ramos entered the United States on December 18, 2001,

without being admitted or paroled. The next day, the former

Immigration and Naturalization Service (“INS”) issued

Ramos a Notice to Appear, charging him with inadmissibility

in accordance with 8 U.S.C. § 1182(a)(6)(A)(i), and placed

him in removal proceedings. On November 1, 2002, Ramos

filed an application for asylum, withholding of removal, and

CAT relief. He also submitted an application for special rule

cancellation of removal pursuant to section 203 of NACARA.

Ramos was the sole witness at the merits hearing before the

IJ. He admitted the factual allegations and conceded inadmissibility. As to his claims for relief, Ramos testified that he had

been threatened by a gang, or “mara,” while attending school

in Guatemala.1 The gang members wanted Ramos to join the

gang, but he refused. As a result, the gang members “continued to threaten [him] and started to steal things from [him].”

On one occasion, they cut his neck with a switchblade when

he would not give them his lunch money. The gang members

told him “[it] was a sign as to what could happen to [him].”

Ramos did not report the incidents to the police because the

gangs had warned him that if he told anyone, “they were

going to do something” to him or his family. He did tell his

family and two of his teachers about the threats, but they took

no action because, according to Ramos, they were also afraid.

1During his testimony before the IJ, Ramos did not give the name of a

particular gang; rather, he referred generally to “the gang” or “the mara.”

He conceded in his brief before the BIA that he could not specifically

identify the gang that recruited him. He suggested, however, that it was

either “Mara 18” or “Mara 13,” which are rival youth gangs in Central

America. 

8028 RAMOS BARRIOS v. HOLDER
Believing his life was in danger on account of the threats,

Ramos left Guatemala in December 2001. Since arriving in

the United States, he has spoken to family members who

remained in Guatemala.2 They told him that the gang members had passed by the house in which Ramos formerly lived,

asking about and threatening him. Ramos testified that he is

scared to return to Guatemala, fearing that “it would go back

to the same thing and that [the gangs] will no longer threaten,

but something would actually happen.” 

The IJ accepted Ramos’s testimony as true but nevertheless

denied all forms of relief. On appeal to the BIA, a onemember panel adopted and affirmed the IJ’s decision, citing

Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994). Ramos

timely petitions for review.

II. STANDARD OF REVIEW

When the BIA cites Burbano “and does not express disagreement with any part of the IJ’s decision, the BIA adopts

the IJ’s decision in its entirety.” Abebe v. Gonzales, 432 F.3d

1037, 1040 (9th Cir. 2005) (en banc). “In citing Burbano,

[t]he BIA thereby signaled that it had conducted an independent review of the record and had exercised its own discretion

in determining that its conclusions were the same as those

articulated by the IJ.” Arreguin-Moreno v. Mukasey, 511 F.3d

1229, 1232 (9th Cir. 2008) (alteration in original) (internal

quotation marks omitted). 

We review questions of law de novo, Cerezo v. Mukasey,

512 F.3d 1163, 1166 (9th Cir. 2008), except to the extent that

deference is owed to the BIA’s determination of the govern2Ramos’s mother and two older brothers still live in Guatemala. His

brothers do not live in the house in which Ramos formerly lived with his

mother. He testified that his brothers have not experienced any problems

with the gangs, nor have the gang members harmed any of his other family

members. 

RAMOS BARRIOS v. HOLDER 8029
ing statutes and regulations, Simeonov v. Ashcroft, 371 F.3d

532, 535 (9th Cir. 2004). Factual findings are reviewed for

substantial evidence. Zehatye v. Gonzales, 453 F.3d 1182,

1184-85 (9th Cir. 2006). When neither the IJ nor the BIA

makes an adverse credibility finding, we must accept a petitioner’s testimony before the IJ as true. Lim v. INS, 224 F.3d

929, 933 (9th Cir. 2000).

III. DISCUSSION

A. Asylum and Withholding of Removal

[1] The Attorney General may grant asylum to an alien who

“is unable or unwilling to return to . . . [his home] country

because of persecution or a well-founded fear of persecution

on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C.

§ 1101(a)(42)(A); id. § 1158(b)(1)(A); see INS v. EliasZacarias, 502 U.S. 478, 481 (1992). The source of the persecution must be a government official or an individual or group

that “the government is unwilling or unable to control.”

Avetova-Elisseva v. INS, 213 F.3d 1192, 1196 (9th Cir. 2000)

(internal quotation marks omitted). To qualify for withholding

of removal, an alien must demonstrate that there is a clear

probability that he will be subject to such persecution. AlHarbi v. INS, 242 F.3d 882, 888 (9th Cir. 2001). An alien who

fails to satisfy the lower standard of proof required to establish eligibility for asylum necessarily fails to establish eligibility for withholding of removal. Farah v. Ashcroft, 348 F.3d

1153, 1156 (9th Cir. 2003). 

[2] Ramos argues that he was persecuted on account of two

protected grounds: (1) membership in a particular social

group—namely, young males in Guatemala who are targeted

for gang recruitment but refuse because they disagree with the

gang’s criminal activities; and (2) an “anti-gang opinion” that

was political in nature, insofar as “gang activity affects the

administration of the government and the country.” We

8030 RAMOS BARRIOS v. HOLDER
recently have held, however, that resistance to gang membership is not a protected ground. Ramos-Lopez v. Holder, No.

06-72402, 2009 WL 1012062, at *2-*6 (9th Cir. Apr. 16, 2009).

3

3We first considered the question of whether resistance to gang membership is a protected ground in Santos-Lemus v. Mukasey, 542 F.3d 738

(9th Cir. 2008). The petitioner in Santos-Lemus presented the same two

arguments that Ramos raises before us. See id. at 744-47. We held that

young men in El Salvador who resist gang violence do not constitute a

particular social group, nor does such resistance constitute an actual or

imputed political opinion. Id. at 746-47. 

Our recent decision in Marmolejo-Campos v. Holder, 558 F.3d 903 (9th

Cir. 2009) (en banc), however, requires us to rethink our approach—but

not our conclusion—in Santos-Lemus. In Marmolejo-Campos, we held

that the BIA’s interpretation of the term “moral turpitude” was entitled to

Chevron deference because the term is ambiguous and the BIA had exercised its authority to give the term concrete meaning through case-by-case

adjudication. Id. at 911-12; see Chevron, U.S.A., Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837 (1984). By the time we decided Santos-Lemus,

the BIA had already published a precedential opinion that was directly on

point—Matter of S-E-G-, 24 I. & N. Dec. 579 (BIA 2008). Although we

reached the same conclusion as Matter of S-E-G- and found its analysis

“particularly helpful,” we noted that the BIA’s decision “[was] not binding

on us.” Santos-Lemus, 542 F.3d at 745. Marmolejo-Campos effectively

calls this reasoning into question. We explained the apparent conflict in

Ramos-Lopez: 

[In Santos-Lemus,] [w]e did not analyze the BIA’s decision [in

Matter of S-E-G-] under the Chevron framework . . . . We

decided Santos-Lemus, however, before our en banc decision in

Marmolejo-Campos, in which we clarified the method by which

we determine the degree of deference owed to BIA decisions.

Thus, to the extent Santos-Lemus is inconsistent with MarmolejoCampos, the later en banc decision must control. 

2009 WL 1012062, at *4 n.4 (citations omitted). 

Although Matter of S-E-G was published almost two years after the

BIA’s unpublished decision in the case before us, we apply Chevron deference to the BIA’s precedential decision for the reasons explained in

Ramos-Lopez. See id. at *3. We note, however, that we would reach the

same conclusion using the analytical approach set forth in either SantosLemus or Ramos-Lopez. 

RAMOS BARRIOS v. HOLDER 8031
In Ramos-Lopez, we held that “young Honduran men who

have been recruited by gangs but refuse to join do not constitute a particular social group.” Id. at *6. Applying Chevron

deference, we concluded that the BIA’s precedential decision

in Matter of S-E-G- “is not arbitrary and capricious.” Id. at *5.

We noted that the BIA’s decision analyzed the purported

social group using the factors set forth in our prior case law.

Id. at *4. Upon reviewing its analysis, we determined that the

BIA reasonably found “that the group was not sufficiently

particular” and “that the group lacked social visibility.” Id. at

*5. 

[3] Ramos’s argument that young men in Guatemala who

resist gang recruitment constitute a social group is indistinguishable from the argument made in Ramos-Lopez.

4

 Accordingly, we must reject Ramos’s argument for the reasons

explained in that case. See id. at *4-*6. 

We also addressed in Ramos-Lopez whether the petitioner

had been persecuted on account of an anti-gang political opinion. Id. at *6. Turning again to Matter of S-E-G-, we deferred

under Chevron “to the BIA’s reasonable interpretation of

‘political opinion’ for the same reason we defer[red] to the

BIA’s reasonable interpretation of ‘particular social group.’ ”

Id. We also relied on our decision in Santos-Lemus.

5

 Id.

4That we addressed resistance to a gang in Honduras, not Guatemala,

in Ramos-Lopez does not alter our conclusion here. We specifically noted

in Ramos-Lopez that Matter of S-E-G- could not be distinguished on this

ground. See Ramos-Lopez, 2009 WL 1012062, at *4 (“[W]e recognize that

[Matter of S-E-G-] specifically addresses resistance to recruitment by the

[Mara Salvatrucha]-13 in El Salvador, not Honduras. The BIA, however,

expected its decision to apply to the same group in Honduras.”). The

BIA’s reasoning in Matter of S-E-G- is no less applicable to the Mara 13

(or an equivalent gang) in Guatemala. Because Ramos claims persecution

by either the Mara 13 or a rival Central American gang, our decision in

Ramos-Lopez controls. 

5

In Ramos-Lopez, we noted that we deferred in Santos-Lemus “to the

BIA’s determination that ‘resistance to a gang’s recruitment efforts alone

8032 RAMOS BARRIOS v. HOLDER
[4] In Santos-Lemus, we found that the petitioner had “provided no evidence that his opposition to the gang’s criminal

activity was based on political opinion [or] . . . that he was

politically or ideologically opposed to the ideals espoused by

the Mara or to gangs in general.” 542 F.3d at 747. Rather, the

available evidence suggested “that Santos-Lemus was victimized for economic and personal reasons.” Id. We held that

“[t]hese motivations do not constitute persecution on account

of political opinion.” Id. We also rejected Santos-Lemus’s

contention that he was persecuted on account of an imputed

political opinion, reasoning that “Santos-Lemus neither stated

in his application for asylum, nor in his testimony at his hearing, that he . . . refused to join the gang,” and that no evidence

suggested “that the gang held any sort of belief system that

they perceived Santos-Lemus to oppose.” Id. Accordingly, we

affirmed the BIA’s determination that “a general aversion to

gangs does not constitute a political opinion for asylum purposes.” Id.

We concluded that Ramos-Lopez’s case was indistinguishable. 2009 WL 1012062, at *6. Because Ramos-Lopez “allege[d] no facts in support of a political opinion, actual or

imputed, beyond his refusal to join the [gang],” we found that

he had failed to prove persecution on account of a protected

ground. Id.

[5] Here, Ramos similarly failed to present evidence that he

was politically or ideologically opposed to the ideals espoused

by the gang that recruited him (or to gangs in general), or that

does not constitute political opinion.’ ” 2009 WL 1012062, at *6 (alterations omitted) (quoting Santos-Lemus, 542 F.3d at 747). We did not,

however, apply Chevron deference in Santos-Lemus in holding that the

petitioner was not persecuted on account of his political opinion. Rather,

we merely noted that the BIA had reached the same conclusion in Matter

of S-E-G. See Santos-Lemus, 542 F.3d at 747. Because Santos-Lemus had

not exhausted this claim before the BIA and, in any event, it was “wholly

unsupported by the record,” we readily rejected it. Id.

RAMOS BARRIOS v. HOLDER 8033
the gang imputed to him any particular political belief. The

evidence instead supports the conclusion that the gang victimized him for economic and personal reasons. That gang members attacked Ramos and cut his neck just after unsuccessfully

trying to rob him reinforces this conclusion. Although Ramos

did state in his asylum application that he refused to join the

gang, this fact alone does not save his claim. Santos-Lemus’s

failure to state in his application or during his hearing that he

refused to join the gang was not the dispositive factor for

rejecting his claim. See 542 F.3d at 746-47. We therefore

reject Ramos’s argument that he was persecuted on account

of a political opinion for the reasons explained in RamosLopez and Santos-Lemus. 

[6] Because Ramos failed to demonstrate that he was persecuted on account of a protected ground, we deny the petition

as to his asylum and withholding of removal claims.6

B. Relief Under NACARA

Ramos argues that the BIA erred in concluding that he is

ineligible for NACARA relief on the grounds that (1) special

rule cancellation of removal (“special rule cancellation”)

requires seven years of continuous physical presence for the

minor children of NACARA beneficiaries; and (2) Ramos’s

father’s physical presence cannot be imputed to him to satisfy

this requirement. We agree with the BIA. 

6We therefore do not address Ramos’s remaining arguments as to asylum and withholding of removal. Nor do we reach Ramos’s claim for CAT

relief. He waived this claim by failing to include it in his opening appellate

brief. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996)

(“[A]n issue referred to in the appellant’s statement of the case but not discussed in the body of the opening brief is deemed waived.”). Even if

Ramos had not waived this claim, we would reject it on the merits because

the injuries he suffered do not rise to the level of torture, see Kumar v.

Gonzales, 444 F.3d 1043, 1055-56 (9th Cir. 2006), and he failed to meet

the heavy burden of proving that it is more likely than not that he will be

tortured upon removal to Guatemala, see Kamalthas v. INS, 251 F.3d

1279, 1283 (9th Cir. 2001). 

8034 RAMOS BARRIOS v. HOLDER
1. Section 203 of NACARA

[7] On November 19, 1997, President Clinton signed into

law NACARA, Pub. L. No. 105-100, 111 Stat. 2160, 2193-

2201 (1997), amended by Pub. L. No. 105-139, 111 Stat.

2644, 2644-45 (1997). NACARA provides various forms of

immigration benefits and relief from removal to certain Guatemalans and nationals of other Central American and former

Soviet Bloc countries. Section 203 of NACARA allows qualified individuals to apply for special rule cancellation under

the more lenient standards that existed before the passage of

the Illegal Immigration Reform and Immigrant Responsibility

Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009.

See Albillo-De Leon v. Gonzales, 410 F.3d 1090, 1093 (9th

Cir. 2005); Munoz v. Ashcroft, 339 F.3d 950, 955-56 (9th Cir.

2003). Agency regulations interpreting special rule cancellation closely track the text of IIRIRA and NACARA. See 8

C.F.R. §§ 1240.61, .66. 

2. Whether Ramos Satisfies One of the Threshold

Requirements

[8] To qualify for special rule cancellation, an applicant

first must show that he falls into one of the five groups identified in 8 C.F.R. § 1240.61(a).7

 As an initial matter, we must

briefly address whether we have jurisdiction to consider the

BIA’s ruling that Ramos failed to satisfy one of these threshold requirements. We hold that we do. Section

309(c)(5)(C)(ii) of IIRIRA, as amended by section 203(b) of

NACARA, appears to limit our jurisdiction to review an agency’s determination that an applicant failed to satisfy one of the

threshold requirements set forth in section 309(c)(5)(C)(i).

However, “section 106 of the Real ID Act of 2005 restored

our jurisdiction over ‘constitutional claims or questions of

law’ raised in a petition for review.” Dhital v. Mukasey, 532

7Section 1240.61(a) implements section 309(c)(5)(C)(i) of IIRIRA, as

amended by section 203 of NACARA. 

RAMOS BARRIOS v. HOLDER 8035
F.3d 1044, 1049 (9th Cir. 2008) (per curiam). In Ramadan v.

Gonzales, 479 F.3d 646 (9th Cir. 2007) (per curiam), we held

that such questions of law include “not only ‘pure’ issues of

statutory interpretation, but also application of law to undisputed facts, sometimes referred to as mixed questions of law

and fact.” Id. at 648; see also Khunaverdiants v. Mukasey,

548 F.3d 760, 765 (9th Cir. 2008); Ghahremani v. Gonzales,

498 F.3d 993, 998-99 (9th Cir. 2007). Because the IJ accepted

Ramos’s testimony as true and none of the facts pertaining to

Ramos’s NACARA application is in dispute, we have jurisdiction to consider whether the BIA properly applied the law.

[9] We conclude that the BIA erred in adopting the IJ’s

conclusion that Ramos failed to satisfy one of the threshold

requirements. Ramos stated in his NACARA application and

argued to the IJ that he was eligible for relief under section

1240.61(a)(4). The IJ acknowledged this fact during an initial

hearing. Addressing Ramos’s counsel, he stated: “You’re

arguing that [Ramos] falls under the fourth paragraph [of section 1240.61(a)], which is that he is the child of a person who

is applying for NACARA.” Subsection (a)(4) provides that

“[a]n alien who is the spouse or child of an individual

described in paragraph (a)(1), (a)(2), or (a)(3) of this section

at the time a decision is made to suspend the deportation, or

cancel the removal, of the individual described in paragraph

(a)(1), (a)(2), or (a)(3)” is eligible for special rule cancellation, subject to certain exceptions not relevant here. 8 C.F.R.

§ 1240.61(a)(4). Subsections (a)(1) through (3) classify the

individual aliens who qualify for suspension of deportation or

special rule cancellation. Despite the IJ’s acknowledgment

that Ramos claimed relief under subsection (a)(4), the IJ mistakenly analyzed Ramos’s claim under subsection (a)(5). Subsection (a)(5) applies only to an applicant who “is 21 years of

age or older at the time a decision is made to [grant NACARA

relief to the applicant’s parent],” id. § 1240.61(a)(5)(i), and

requires a showing that the applicant “[e]ntered the United

States on or before October 1, 1990,” id. § 1240.61(a)(5)(ii).

This subsection is plainly inapplicable because, as the IJ

8036 RAMOS BARRIOS v. HOLDER
found, Ramos was only seventeen years old when he applied

for NACARA relief. Therefore, subsection (a)(4) applies,

which Ramos undoubtedly satisfies based on the facts found

by the IJ.8

[10] Ramos’s father, Roberto Ramos Chamale

(“Chamale”), was granted NACARA relief in the form of permanent resident status on May 25, 2004.9

 Moreover, Ramos

qualifies as Chamale’s “child” as defined in 8 U.S.C.

§ 1101(b)(1). Ramos therefore was eligible for NACARA

relief subject to meeting the physical presence requirement. 

3. Whether Ramos Satisfies the Physical Presence

Requirement

[11] To establish eligibility for special rule cancellation

under the amended version of section 309(f)(1) of IIRIRA, the

applicant must be “described in [section 309](c)(5)(C)(i)” and

must establish the requisite physical presence.10 This physical

presence requirement is set forth in 8 C.F.R. § 1240.66(b)(2)11

: “The alien has been physically present in the United States

for a continuous period of 7 years immediately preceding the

date the application was filed.” It is undisputed that Ramos

did not personally meet this requirement. 

8Because the IJ already made the predicate factual findings, we need not

remand under INS v. Ventura, 537 U.S. 12 (2002) (per curiam). Further,

we note that the government did not request a Ventura remand for the IJ

to apply (a)(4) instead of (a)(5). Indeed, the question of Ramos’s threshold

eligibility for NACARA relief has never been contested. 

9Chamale’s NACARA application indicates that he qualified for relief

pursuant to section 1240.61(a)(1). The IJ suggested, however, that he qualified under subsection (a)(2). Neither party addressed this issue in its

briefs. Because it is undisputed that Chamale was granted NACARA relief

under one of the first three subsections of 8 C.F.R. § 1240.61(a), we need

not resolve this issue. 

10Section 309(f)(1) of IIRIRA includes other eligibility requirements

that are not at issue here. 

11Section 1240.66 (b)(2) implements section 309(f)(1)(A)(ii) of IIRIRA,

as amended. 

RAMOS BARRIOS v. HOLDER 8037
a. Applicability of the Physical Presence Requirement

Ramos first disputes that special rule cancellation requires

seven years of physical presence for the minor children of

NACARA beneficiaries. He notes that the amended version of

section 309(c)(5)(C)(i)(III) of IIRIRA does not include a

physical presence requirement, and contends that Form I-881,

the NACARA application, confirms this interpretation of the

Act. Although Ramos accurately describes subsection III, he

fails to consider section 309 in its entirety. The amended section 309(f)(1) expressly states that an applicant must be “described in [section 309](c)(5)(C)(i) . . . and . . . ha[ve] been

physically present in the United States for a continuous period

of not less than 7 years immediately preceding the date of

such application.” 111 Stat. 2198 (emphasis added). Form I881 exactly mirrors the wording of section 309, and thus is of

little aid to Ramos’s argument. 

[12] Ramos also incorrectly suggests that the regulations

themselves support his interpretation. Section 1240.66

unequivocally states that to be eligible for NACARA relief,

an applicant “must be described in § 1240.61” and must satisfy the physical presence requirement. 8 C.F.R. § 1240.66(a),

(b)(2). The relevant legislative history also undermines

Ramos’s argument that there is no seven-year physical presence requirement for derivative NACARA applicants. See,

e.g., 143 Cong. Rec. S12265-01, S12266-67 (daily ed. Nov.

9, 1997) (Explanatory Memorandum Regarding Title II of the

D.C. Appropriations Potion [sic] of the Omnibus Appropriations Bill Submitted by Messrs. Mack, Graham, Abraham,

Kennedy, and Durbin) (section-by-section analysis of

NACARA). We therefore hold that a minor who qualifies for

NACARA relief as a derivative under 8 C.F.R.

§ 1240.61(a)(4) must satisfy the seven-year physical presence

requirement set forth in 8 C.F.R. § 1240.66(b)(2). 

8038 RAMOS BARRIOS v. HOLDER
b. Imputation of a Parent’s Physical Presence for 

Purposes of NACARA Relief

Ramos would satisfy the physical presence requirement if

his father’s physical presence in the United States were

imputable to him for purposes of NACARA relief. For the

reasons explained below, we hold that it is not. 

(i) Deference to the BIA 

We must first consider the level of deference, if any, owed

to the IJ’s determination and the BIA’s adoption of the rule

disallowing imputation. A single-member BIA panel affirmed

the IJ’s decision in an unpublished, nonprecedential decision.12

Such decisions are entitled to only Skidmore,

13 rather than

Chevron, deference. See Garcia-Quintero v. Gonzales, 455

F.3d 1006, 1013-15 (9th Cir. 2006). In Skidmore, the Supreme

Court held that a nonbinding administrative interpretation carries a weight “depend[ent] upon the thoroughness evident in

its consideration, the validity of its reasoning, its consistency

with earlier and later pronouncements, and all those factors

which give it power to persuade, if lacking power to control.”

323 U.S. at 140; see United States v. Mead Corp., 533 U.S.

218, 237-38 (2001) (holding that Skidmore remained intact

after Chevron and that Skidmore deference applies when

Chevron deference does not). If the reasons provided by the

12The BIA has not addressed in a published (or unpublished) opinion

whether a parent’s physical presence may be imputed to his child for purposes of NACARA relief. The single-member BIA panel that affirmed the

IJ’s decision should have referred the appeal to a three-member panel, as

it presented the need to establish precedent construing the meaning of the

amended section 309(f)(1) of IIRIRA. See Garcia-Quintero v. Gonzales,

455 F.3d 1006, 1012-13 (9th Cir. 2006) (holding that “[a] case must be

decided by a three-member panel [of the BIA] if it presents ‘[t]he need to

establish a precedent construing the meaning of laws, regulations, or procedures’ ” (third alteration in original) (quoting 8 C.F.R.

§ 1003.1(e)(6)(ii)). 

13Skidmore v. Swift & Co., 323 U.S. 134 (1944). 

RAMOS BARRIOS v. HOLDER 8039
BIA to support its conclusion are not persuasive, then we

must review de novo the question before us. Garcia-Quintero,

455 F.3d at 1015. 

The BIA did not even address Ramos’s imputation argument, nor did it provide any reasoning for its determination

that Ramos failed to meet the physical presence requirement.

Moreover, it did not cite any precedent of the BIA or our circuit. That the BIA adopted the IJ’s decision does not

strengthen the BIA’s basis for rejecting Ramos’s argument.

The IJ merely noted that he was unaware of any precedent

that had directly allowed such imputation, but did not address

the cases Ramos cited to support his argument. Therefore, we

review de novo the remaining question presented by Ramos’s

petition: Should a minor who applies for NACARA relief as

a derivative of his parent be permitted to impute his parent’s

physical presence for purposes of satisfying the seven-year

requirement? 

(ii) Analogous Precedent 

[13] While we have not previously addressed whether a

parent’s physical presence can be imputed to his minor child

for purposes of NACARA relief, we have interpreted analogous immigration statutes. 

In Lepe-Guitron v. INS, 16 F.3d 1021, 1022 (9th Cir. 1994),

we addressed the concept of “imputation” in the context of a

discretionary waiver of deportation under the now-repealed

Immigration and Nationality Act (“INA”) section 212(c),14 8

U.S.C. § 1182(c), which required, inter alia, seven years of

“lawful unrelinquished domicile.” We held that a parent’s

“lawful unrelinquished domicile” can be imputed to his minor

child. Lepe-Guitron, 16 F.3d at 1022. The petitioner, a minor,

had “legally entered the United States with his parents, was

14Section 212(c) was repealed by IIRIRA, § 304(b), 110 Stat. at 3009-

597. See INS v. St. Cyr, 533 U.S. 289, 297 (2001). 

8040 RAMOS BARRIOS v. HOLDER
always legally within the country, was domiciled here, but

acquired permanent resident status . . . many years after his

parents achieved it” because of a processing error attributable

to the INS. Id. at 1024. We first observed that section 212(c)

“was enacted to alleviate the harsh effects of deportation on

those aliens who have lawfully established substantial ties to

the United States.” Id. at 1023. We then reasoned that,

“[b]ecause children naturally form the strongest of ties to the

place where their parents are domiciled and they with them,

section 212(c)’s core policy concerns would be directly frustrated by the government’s proposal to ignore the parent’s

domicile in determining that of the child.” Id. at 1025. 

We found further support for our analysis in Congress’s use

of the term “domicile.” Id. Adopting the common law definition of “domicile”—that “aliens must not only be physically

present [in the United States], but must intend to remain”—

we reached the “unremarkable” conclusion that “a child’s

domicile follows that of his or her parents.” Id. (internal quotation marks omitted).We explained that “because children

are, legally speaking, incapable of forming the necessary

intent to remain indefinitely in a particular place,” they cannot

determine their own domicile. Id. Finally, we noted that other

sections of the INA giving “a high priority to the relation

between permanent resident parents and their children”

strengthened our analysis. Id.

Two years after we decided Lepe-Guitron, Congress

replaced section 212(c) with INA section 240A(a), 8 U.S.C.

§ 1229b(a), which governs cancellation of removal for lawful

permanent residents.15 See St. Cyr, 533 U.S. at 297. Because

15Title 8 U.S.C. § 1229b(a) provides: 

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, 

RAMOS BARRIOS v. HOLDER 8041
section 240A(a) modified section 212(c) in several key

respects, our holding in Lepe-Guitron came into question. In

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

we reaffirmed Lepe-Guitron’s viability and extended its holding to § 1229b(a)’s requirement of seven years of continuous

residence in the United States.

Cuevas-Gaspar had lived in the United States since he was

one year old, but he did not attain lawful permanent residence

until he was approximately thirteen. Id. at 1016. He sought

cancellation of removal less than seven years later. Id. Both

the IJ and the BIA concluded that he was ineligible for cancellation of removal because he failed to satisfy § 1229b(a)’s

requirement of seven years of continuous residence after

admission. Id. at 1016-17; see 8 U.S.C. § 1229b(a)(2). 

Applying the two-step Chevron inquiry and determining

that deference to the BIA was not warranted, Cuevas-Gaspar,

430 F.3d at 1026, we held that “for purposes of satisfying the

seven-years of continuous residence ‘after having been admitted in any status’ required for cancellation of removal under

8 U.S.C. § 1229b(a), a parent’s admission for permanent resident status is imputed to the parent’s unemancipated minor

children residing with the parent,” id. at 1029. Instructed by

Lepe-Guitron, we reasoned that the difference between “lawful unrelinquished domicile” and residence “after having been

admitted in any status” was not “so great as to be dispositive”

and “[did] not justify a departure from the INA’s policy of

putting a high priority on relations between permanent legal

residents and their children.” Id. at 1026. 

We also cited specific examples to demonstrate that “both

the BIA and this court repeatedly have held that a parent’s

(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. 

8042 RAMOS BARRIOS v. HOLDER
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 1024. We first discussed Vang v. INS,

146 F.3d 1114 (9th Cir. 1998), in which we applied the principles articulated in Lepe-Guitron to the question of whether

“aminor has firmly resettled in another country.” Id. at 1116.

We noted in Vang that, under INS regulations, the child of a

refugee or asylee is generally entitled to the same legal status

as her parent. Id. Because “it would be unreasonable to hold

an adolescent responsible for arranging or failing to arrange

permanent resettlement,” id. (internal quotation marks omitted), we concluded that we must “look to whether the minor’s

parents have firmly resettled in a foreign country before coming to the United States, and then derivatively attribute the

parents’ status to the minor,” id. at 1116-17. 

Next, we addressed Senica v. INS, 16 F.3d 1013 (9th Cir.

1994), in which we agreed with the BIA that a parent’s

knowledge of ineligibility for admission to the United States

should be imputed to her children. Id. at 1015-16. We concluded in Senica that “[t]he BIA’s decision here was not a

departure from its previous practice of imputing a parent’s

state of mind, or failure to reasonably investigate, to an unemancipated minor child.” Id. at 1016. Finally, we observed in

Cuevas-Gaspar “that the BIA has commonly imputed a parent’s abandonment of permanent legal resident status to the

parent’s minor children.” 430 F.3d at 1025 (citing, for example, Matter of Zamora, 17 I. & N. Dec. 395, 396 (BIA 1980)

(holding that the voluntary and intended abandonment of lawful permanent resident status by the parent of an unemancipated minor child is imputed to the child); Matter of Winkens,

15 I. & N. Dec. 451, 452 (BIA 1975) (holding that parents’

abandonment of lawful permanent resident status was

imputed to their minor child “who was subject to their custody and control”)). 

We then turned to Congress’s intent in enacting § 1229b.

Cuevas-Gaspar, 430 F.3d at1026-27. Relying on the relevant

RAMOS BARRIOS v. HOLDER 8043
legislative history, we determined that Congress had replaced

section 212(c) with section 240A(a) to resolve the conflicting

interpretations of “unrelinquished lawful domicile,” not to

narrow the continuous residency rule. Id. at 1028. 

We left open the question of whether a parent’s permanent

resident status may be imputed to his child for purposes of

§ 1229b(a)’s five-year residency requirement. Id. at 1021 n.5;

see 8 U.S.C. § 1229b(a)(1) (requiring a showing that an alien

has been “lawfully admitted for permanent residence for not

less than 5 years”). We recently answered this question in

Escobar v. Holder, Nos. 07-72843, 08-71777 (9th Cir. 2009).

Relying on our reasoning in Lepe-Guitron and CuevasGaspar, we held that, “for purposes of satisfying the five

years of lawful permanent residence required under . . .

§ 1229b(a)(1), a parent’s status as a lawful permanent resident

is imputed to the unemancipated minor children residing with

that parent.” Id. at 6209. 

(iii) Application to NACARA 

We reject Ramos’s argument that we should extend our

reasoning in Lepe-Guitron and Cuevas-Gaspar16 to impute a

parent’s physical presence in the United States to his minor

child for purposes of satisfying NACARA’s seven-year physical presence requirement. The meaning of “physical presence” is quite distinct from the requirements we have

previously held to be imputable. Indeed, the difference in

meaning is “so great as to be dispositive,” Cuevas-Gaspar,

430 F.3d at 1026. Moreover, neither NACARA’s legislative

history nor its underlying policy compels a different conclusion. 

[14] Our precedent demonstrates that we impute a parent’s

status, intent, or state of mind to satisfy immigration criteria

that an unemancipated minor child must meet. The require16Escobar had not yet been published when the parties filed their briefs.

8044 RAMOS BARRIOS v. HOLDER
ments at issue in Lepe-Guitron (“lawful unrelinquished domicile”), Cuevas-Gaspar (“admitted in any status”), Escobar

(“lawfully admitted for permanent residence”), Vang (“firmly

resettled”), Senica (knowledge of ineligibility), and Matter of

Zamora (abandonment of lawful permanent resident status)

are all terms of art that include an element of status, intent, or

state of mind. We have allowed imputation precisely because

the minor either was legally incapable of satisfying one of

these criteria or could not reasonably be expected to satisfy it

independent of his parents. In Lepe-Guitron, for example, we

used “a definition of domicile consonant with its common law

meaning: that aliens must not only be physically present here,

but must intend to remain.” 16 F.3d at 1025 (internal quotation marks omitted). We explained that “a child’s domicile

follows that of his or her parents” because “children are,

legally speaking, incapable of forming the necessary intent to

remain indefinitely in a particular place.” Id. Accordingly, we

imputed to the petitioner his parents’ years of “lawful unrelinquished domicile” in the United States. 

In Cuevas-Gaspar, our decision to impute turned on the

meaning of “admitted,” which is defined as “the lawful entry

of the alien into the United States after inspection and authorization by an immigration officer.” 8 U.S.C. § 1101(a)(13)(A).

Although the petitioner had lived in the United States with his

lawfully admitted mother since he was one, he was not “admitted” until he was thirteen. Cuevas-Gaspar, 430 F.3d at

1016. Analogizing to our precedent and that of the BIA, we

suggested that it would be unreasonable to hold a minor, who

was subject to his mother’s custody and control, responsible

for failing to satisfy this administrative procedure. Id. at 1024

-25. Because policy considerations and the legislative history

of § 1229b added support to our statutory analysis, see id. at

1026-29, we imputed to the petitioner his mother’s “admitted”

status for purposes of satisfying the seven years of continuous

residence after having been “admitted in any status” required

for cancellation of removal, id. at 1029. 

RAMOS BARRIOS v. HOLDER 8045
Escobar followed directly from Lepe-Guitron and CuevasGaspar. Addressing § 1229b(a)’s requirement that an alien

have been “lawfully admitted for permanent residence”—

defined as “the status of having been lawfully accorded the

privilege of residing permanently in the United States as an

immigrant in accordance with the immigration laws, such status not having changed”

17 —for not less than five years, we

reasoned that the difference between “lawful unrelinquished

domicile” and “lawfully admitted for permanent residence”

was no greater than the difference between “lawful unrelinquished domicile” and “admitted in any status,” Escobar,

Nos. 07-72843, 08-71777, at 6202-03. We thus concluded that

the BIA’s interpretation of § 1229b(a) was unreasonable and

that “Cuevas-Gaspar compels the conclusion[ ] that imputation . . . is appropriate.” Id. at 6207-08; see also Vang, 146

F.3d at 1116-17 (discussing whether the petitioner had

“firmly resettled,” as defined in 8 C.F.R. § 1208.15). 

[15] By contrast, the definition of “physical presence” does

not require a specific “status, intent, or state of mind.”

Cuevas-Gaspar, 430 F.3d at 1024. Because “physically present” is not defined in section 203, in 8 U.S.C. § 1101, or in

any of the relevant regulations, see 8 C.F.R. §§ 1240.60, .61,

.66, “we give it its ordinary meaning.” United States v. Santos, 128 S. Ct. 2020, 2024 (2008). The relevant dictionary

definition of “physically”/“present” is “corporeally”/“being in

the place in question or under consideration.” Oxford English

Dictionary XI:746, XII:395 (2d ed. 1989). Our case law generally relies on this meaning of “physically present.” For

example, in Kalaw v. INS, 133 F.3d 1147 (9th Cir. 1997),

where we examined the transitional rules of IIRIRA, we

explained that “[t]he first eligibility requirement, continuous

physical presence, must be determined from the facts, not

through an exercise of discretion. Either the petitioner has

been continuously present in the United States for seven years

or the petitioner has not.” Id. at 1151. In other words, the defi178 U.S.C. § 1101(a)(20). 

8046 RAMOS BARRIOS v. HOLDER
nition of “physical presence” is a state of being, not a state of

mind; it is not conferred by an immigration officer or a governmental agency; it depends on no legal construct.18 Therefore, it can be attained as readily by a minor as by his parent.

[16] The distinction between physical presence, on the one

hand, and status, intent, state of mind, and analogous concepts, on the other, is readily observed here. Unlike the petitioners in Lepe-Guitron, Cuevas-Gaspar, and Escobar,

Ramos had not lived in the United States for almost his entire

life when he applied for relief; he had only just arrived.

Ramos necessarily would have satisfied the physical presence

requirement had he been in the custody of his father (who was

physically present in the United States for more than a decade

before Ramos arrived). In other words, unlike the petitioners

in our prior decisions, Ramos had no additional legal or

administrative hurdles to clear beyond mere presence.19

Ramos was either corporeally within the borders of the United

States or he was not. Because he was not, he cannot meet the

physical presence requirement, and there is no legal basis for

imputing his father’s physical presence. 

18As a practical matter, most persons intend to be physically present in

the particular place in which they are located, but this is not always the

case. Strictly speaking, intent is irrelevant to physical presence. More specifically, why someone is physically present in the United States is irrelevant for purposes of the statutory requirement at issue here; all that matters

is that the person is physically present. It is therefore logical that, unlike

in the requirements we examined in Lepe-Guitron, Cuevas-Gaspar, and

Escobar, “physical presence” does not incorporate intent as an element. 

19We leave open the question of whether a child under the age of seven

who was present in the United States when his parent filed an asylum

application could be granted NACARA relief. See Dep’t of Justice, INS,

Rules and Regulations, Suspension of Deportation and Special Rule Cancellation of Removal for Certain Nationals of Guatemala, El Salvador, and

Former Soviet Bloc Countries, 64 Fed. Reg. 27856-01, 27861 (May 21,

1999) [hereinafter Rules and Regulations], available at 1999 WL 316287

(noting that if a child is present in the United States at the time his parent’s

asylum application is filed, she is “considered to have filed an application

for asylum on the date the principal’s asylum application was filed”). 

RAMOS BARRIOS v. HOLDER 8047
Nor does NACARA’s legislative history support Ramos’s

argument that Congress intended to allow minors to impute

their parents’ physical presence for purposes of relief under

the Act. The legislative history does not mention imputation,

which Ramos does not dispute. Rather, he argues that,

because “[t]he law was passed to assist individuals to gain

legal status in the United States,” allowing imputation would

be consistent with the “spirit of NACARA.” While we agree

that Congress’s primary goal in enacting NACARA was to

decrease obstacles to asylum relief for qualified individuals,20

we disagree that this goal justifies imputing a parent’s physical presence under section 203. An individual must first be

deemed “qualified” before he can reap the benefits of

NACARA relief. 

Statements made by the INS around the time NACARA

went into effect also undercut Ramos’s argument:

[S]ection 203 of NACARA . . . allow[s] children and

spouses to apply for relief under NACARA, even if

they had not been continuously physically present in

the United States for 7 years at the time NACARA

20We previously have recognized that “Congress enacted section 203 of

NACARA in reaction to IIRIRA’s severe consequences in making thousands of immigrants, including those from Guatemala, ineligible for suspension of deportation.” Albillo-De Leon, 410 F.3d at 1096. Moreover, the

legislative history suggests that a flexible approach should be used in

interpreting and applying NACARA. See, e.g., 143 Cong. Rec. at S12266

(“[G]iven the special solicitude Congress is showing toward the Eligible

Class Members by enacting [NACARA] . . . it would . . . be entirely consistent with that intent for the Attorney General . . . not to challenge applications for relief by Eligible Class Members on hardship grounds if the

applicant satisfies the seven-year presence and good moral character

requirements.”); see also White House, Office of Commc’ns, Statement on

DC Appropriations Act 11/19/97 (Nov. 24, 1997) (statement of President

Clinton), available at 1997 WL 727883 (“I . . . am asking the Attorney

General to consider the ameliorative purposes of [NACARA] and the

unique history and circumstances of the people covered by it in giving

effect to its provisions.”). 

8048 RAMOS BARRIOS v. HOLDER
was enacted or implemented. To meet the physical

presence requirement, the spouse or child must have

7 years of continuous physical presence in the

United States . . . as of the date the application for

relief was filed.

Rules and Regulations, at 27861 (emphasis added). Although

the INS was not directly addressing the question before us, its

statements necessarily assume that the spouse or child must

independently satisfy the seven-year requirement. Particularly

in light of Congress’s silence on imputation in the legislative

history, these statements support the conclusion we reach

through our statutory interpretation—that Congress did not

intend to allow imputation in this context. 

Ramos also makes three policy arguments for allowing

imputation of his father’s physical presence: (1) that “our

immigration statutes and regulations are replete with provisions ‘giving a high priority to the relation between permanent resident parents and their children,’ ” Cuevas-Gaspar,

430 F.3d at 1024 (quoting Lepe-Guitron, 16 F.3d at 1025); (2)

that he would suffer a “peculiar or unusual hardship” if we

refuse to impute his father’s physical presence to him, LepeGuitron, 16 F.3d at 1024 (internal quotation marks omitted);

and (3) that we adhere to “the general canon of construction

that resolves ambiguities in favor of the alien,” CuevasGaspar, 430 F.3d at 1029; see also Hernandez v. Ashcroft,

345 F.3d 824, 840 (9th Cir. 2003). 

None of these general considerations persuades us that

imputation is appropriate here. Although we have allowed

imputation for purposes of satisfying a number of requirements in immigration statutes, we have not done so when neither the statutory language nor the legislative history

supported that result. Moreover, as already discussed, the key

fact supporting the policy rationales articulated in LepeGuitron, Cuevas-Gaspar, and Escobar—that the minor

resided with his or her family in the United States—is absent

RAMOS BARRIOS v. HOLDER 8049
here. Not only has Ramos lived in Guatemala nearly all his

life, but most of his family still lives there. Thus, he has not

“formed strong ties to the United States.” Lepe-Guitron, 16

F.3d at 1025. Because disallowing imputation in this context

does not sever the “bonds between parents and their children

who had resided legally in the United States for the better part

of their lives,” id., it does not frustrate the “just and humane

goal of providing relief to those for whom deportation would

result in peculiar or unusual hardship,” id. at 1024 (internal

quotation marks omitted). Finally, while the text of NACARA

does not explicitly prohibit imputation, neither is it ambiguous, as our statutory analysis makes clear. Therefore, we need

not read it in the light most favorable to Ramos. 

[17] For the foregoing reasons, we conclude that Ramos is

ineligible for asylum, withholding of removal, CAT relief, or

special rule cancellation of removal. Accordingly, we deny

his petition for review. 

PETITION DENIED.

8050 RAMOS BARRIOS v. HOLDER