FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ENRIQUE CUEVAS-GASPAR, 

Petitioner, No. 03-73562

v. Agency No.  A75-268-157 ALBERTO R. GONZALES, Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

March 11, 2005—Seattle, Washington

Filed December 7, 2005

Before: Ferdinand F. Fernandez, A. Wallace Tashima, and

Ronald M. Gould, Circuit Judges.

Opinion by Judge Tashima;

Dissent by Judge Fernandez

15811
COUNSEL

Soren M. Rottman, Northwest Immigrant Rights Project,

Granger, Washington, for the petitioner. 

Bryan S. Beier, Civil Division, U.S. Department of Justice,

Washington, D.C., for the respondent.

OPINION

TASHIMA, Circuit Judge: 

Enrique Cuevas-Gaspar (“Cuevas-Gaspar”), an alien with

legal permanent resident status, petitions for review of the

Board of Immigration Appeal’s (“BIA”) conclusion that

15814 CUEVAS-GASPAR v. GONZALES
Cuevas-Gaspar is removable. Cuevas-Gaspar was convicted

for being an accomplice to residential burglary under Washington law. Cuevas-Gaspar asserts that the BIA erred in concluding that he was removable because his conviction

constituted a crime of moral turpitude. Cuevas-Gaspar also

asserts that his presence in the United States as an unemancipated minor residing with his lawfully-admitted mother

should count towards the requirement, under Immigration

and Nationality Act (“INA”) § 240A(a)(2), 8 U.S.C.

§ 1229b(a)(2), that he have resided in the United States continuously for seven years “after having been admitted in any

status.” 

We have jurisdiction over Cuevas-Gaspar’s petition for

review pursuant to INA § 242(b)(2), 8 U.S.C. § 1252(b)(2).

See Notash v. Gonzales, 427 F.3d 693, 695-96 (9th Cir. 2005).

We grant the petition and remand to the BIA for further proceedings.

BACKGROUND

Petitioner Enrique Cuevas-Gaspar (“Cuevas-Gaspar”) is a

21-year-old native and citizen of Mexico. He was admitted to

the United States as a lawful permanent resident on December

4, 1997. Cuevas-Gaspar asserts that he entered the United

States with his parents in 1985, when he was one year old,

and that his mother attained permanent resident status in

1990, when Cuevas-Gaspar was seven years old.1

On October 16, 2002, Cuevas-Gaspar pled guilty in Washington Superior Court to the offense of being an accomplice

to residential burglary, in violation of Washington Revised

Code §§ 9A.52.025(1) and 9A.08.020(3). The Statement of

Defendant on Plea of Guilty requires the defendant to state “in

1The immigration judge assumed that there was no issue of fact as to

whether Cuevas-Gaspar resided in the United States prior to attainment of

legal permanent resident status. 

CUEVAS-GASPAR v. GONZALES 15815
[his] own words, what [he] did that makes [him] guilty of this

crime.” In the guilty plea statement, Cuevas-Gaspar

responded: “On March 13, 2002, in Yakima County, I helped

another person take property without permission from a residence where no one was home.” He was sentenced to a threemonth term of confinement. 

On February 28, 2003, the Immigration and Naturalization

Service2 issued Cuevas-Gaspar a Notice to Appear, charging

him as removable under 8 U.S.C. § 1227(a)(2)(A)(i) for having been “convicted of a crime involving moral turpitude

committed within five years . . . after the date of admission

. . . for which a sentence of one year or longer may be

imposed.” Cuevas-Gaspar denied the charge that he was

removable and denied that his conviction constituted a crime

involving moral turpitude. He conceded that he was a native

and citizen of Mexico, that he was admitted as a lawful permanent resident in December 1997, and that he was convicted

of being an accomplice to residential burglary under Washington law. He also said that he did not have lawful status

prior to December 1997. Cuevas-Gaspar then asserted that he

was eligible for cancellation of removal. 

Noting that Cuevas-Gaspar’s arguments presented only

issues of law, the IJ concluded that Cuevas-Gaspar’s conviction constituted a crime involving moral turpitude and that

Cuevas Gaspar therefore was removable. The IJ also reasoned

that, because Cuevas-Gaspar did not have lawful status until

December 1997, Cuevas-Gaspar could not establish seven

years of continuous residence “after having been admitted in

any status.” The IJ concluded that Cuevas-Gaspar therefore

was not eligible for cancellation of removal under INA

§ 240A(a), 8 U.S.C. § 1229b(a). The IJ ordered that CuevasGaspar be removed to Mexico. 

2The Immigration and Naturalization Service has since been abolished

and its functions transferred to the Department of Homeland Security. See

Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2142

(2002). 

15816 CUEVAS-GASPAR v. GONZALES
Cuevas-Gaspar appealed to the BIA, arguing (1) that his

conviction was for an offense that is not a crime involving

moral turpitude, and (2) that he satisfies the seven-year continuous residence requirement for cancellation of removal

because his presence in the United States as a minor residing

with his lawfully-admitted parents should count towards that

requirement. 

The BIA rejected both arguments. First, the BIA concluded

that Cuevas-Gaspar’s conviction constituted a crime of moral

turpitude. The BIA stated: “It is well-settled that generic burglaries of this sort constitute crimes involving moral turpitude. . . . The respondent’s conviction as an accomplice to the

underlying crime also constitutes a crime involving moral turpitude. Accordingly, we affirm the Immigration Judge’s ruling that the respondent is removable as charged.” The BIA

then reasoned that, because Cuevas-Gaspar was not “admitted” to the United States until December 4, 1997, CuevasGaspar could not satisfy the seven-year continuous residence

requirement for cancellation of removal. The BIA dismissed

the appeal. Cuevas-Gaspar filed a timely petition for review.

DISCUSSION

I. Crime Involving Moral Turpitude

We review de novo the question of whether a state statutory

crime constitutes a crime involving moral turpitude. Carty v.

Ashcroft, 395 F.3d 1081, 1083 (9th Cir. 2005) (citing

Rodriguez-Herrera v. INS, 52 F.3d 238, 240 n.4 (9th Cir.

1995)). 

Cuevas-Gaspar argues that his conviction for being an

accomplice to residential burglary does not constitute a crime

involving moral turpitude because the offense of burglary

encompasses conduct that does not involve moral turpitude.

To determine whether a specific crime falls within a particular

category of grounds for removability, we apply the categoriCUEVAS-GASPAR v. GONZALES 15817
cal and modified categorical approaches set forth in Taylor v.

United States, 495 U.S. 575 (1990). See Tokatly v. Ashcroft,

371 F.3d 613, 622 (9th Cir. 2004); Gonzalez-Alvarado v. INS,

39 F.3d 245, 246 (9th Cir. 1994) (applying modified categorical approach to determine whether petitioner’s state conviction constituted a crime involving moral turpitude). 

A. Categorical Approach

[1] The categorical approach requires us to “make a categorical comparison of the elements of the statute of conviction to the generic definition, and decide whether the conduct

proscribed [by the statute] is broader than, and so does not

categorically fall within, this generic definition.” HuertaGuevara v. Ashcroft, 321 F.3d 883, 887 (9th Cir. 2003). We

look “only to the fact of conviction and the statutory definition of the prior offense,” and not to the particular facts underlying the conviction. Id. The issue is not whether the actual

conduct constitutes a crime involving moral turpitude, but

rather, whether the full range of conduct encompassed by the

statute constitutes a crime of moral turpitude. See United

States v. Castillo-Rivera, 244 F.3d 1020, 1022 (9th Cir.

2001). 

“The phrase ‘crime involving moral turpitude’ has without

exception been construed to embrace fraudulent conduct.”

Jordan v. De George, 341 U.S. 223, 232 (1951). See Rashtabadi v. INS, 23 F.3d 1562, 1568 (9th Cir. 1994) (holding that

grand theft is a crime involving moral turpitude). In addition,

“certain crimes necessarily involving rather grave acts of

baseness or depravity may qualify as crimes of moral turpitude even though they have no element of fraud.” RodriguezHerrera v. INS, 52 F.3d 238, 240 (9th Cir. 1995). See

Gonzalez-Alvarado, 39 F.3d at 246 (holding that incest is a

crime involving moral turpitude). Where an act is only statutorily prohibited, rather than inherently wrong, the act generally will not involve moral turpitude. Beltran-Tirado v. INS,

213 F.3d 1179, 1184 (9th Cir. 2000) (noting difference

15818 CUEVAS-GASPAR v. GONZALES
between malum prohibitum, an act only statutorily prohibited,

and malum in se, an act inherently wrong). 

[2] We have not, thus far, decided whether burglary is a

crime involving moral turpitude under the categorical

approach set forth in Taylor.

3

 In Toro-Romero v. Ashcroft,

382 F.3d 930 (9th Cir. 2004), we did not decide the issue, but

rather, remanded to the BIA to determine whether burglary

constituted a crime involving moral turpitude. Id. at 936-37.

We concluded in United States v. Becker, 919 F.2d 568, 573

(9th Cir. 1990), that burglary constitutes a crime of violence

for federal sentencing purposes, but did not discuss whether

burglary is a crime involving moral turpitude. Although we

summarily concluded in Baer v. Norene, 79 F.2d 340 (9th Cir.

1935), that the petitioner’s convictions for forgery and for

burglary in the second degree were offenses that involved

moral turpitude, id. at 341, we did not analyze whether the

full range of conduct covered by the statute falls within the

definition of a crime involving moral turpitude. See CastilloRivera, 244 F.3d at 1022 (explaining the categorical

approach). Similarly, the BIA has concluded, in cases predating Taylor, that “[b]urglary and theft or larceny, whether

grand or petty, are crimes involving moral turpitude.” Matter

of De La Nues, 18 I. & N. Dec. 140, 145 (BIA 1981). In sum,

neither this court nor the BIA has addressed the issue of

whether, under the Taylor categorical approach, burglary is a

crime involving moral turpitude. 

The BIA has reasoned, however, that an offense involving

breaking and entering or trespass may be deemed to involve

moral turpitude only if accompanied by the intent to commit

3The BIA’s decision cites to De La Cruz v. INS, 951 F.2d 226 (9th Cir.

1991), in support of its conclusion that burglary constitutes a crime involving moral turpitude. In De La Cruz, however, we did not address the issue

of whether burglary is a crime involving moral turpitude. Rather, we

decided the issue of whether an IJ could consider the validity of a state

conviction underlying a deportability determination. Id. at 228. 

CUEVAS-GASPAR v. GONZALES 15819
a morally turpitudinous act after entry. See Matter of M, 2 I.

& N. Dec. 721, 723 (BIA 1946); Matter of G, 1 I. & N. Dec.

403, 404-406 (BIA 1943). The BIA explained that, for example, pushing ajar the unlocked door of an unused structure and

putting one’s foot across the threshold would constitute a

breaking and entering, but that this was not in and of itself

“base, vile, or depraved.” Matter of M, 2 I. & N. Dec. at 723.

The BIA further explained that, because the only remaining

element in the statute was the particular crime that accompanies the act of entry, it is this element alone that determines

whether the offense was one involving moral turpitude. Id.

The BIA then reasoned that the crime that accompanies

breaking and entering could be any one of the countless state

offenses, which could be either misdemeanors or felonies: 

For example, a group of boys opening the unlocked

door of an abandoned barn with the intention of

playing cards in violation of one of the many New

York wagering laws, could all be convicted of third

degree burglary. Yet, we do not think that such persons should be deemed to be base, vile or depraved.

Id.

[3] Cuevas-Gaspar was convicted as an accomplice to the

offense set forth in Washington Revised Code

§ 9A.52.025(1), which states: “A person is guilty of residential burglary if, with intent to commit a crime against a person

or property therein, the person enters or remains unlawfully

in a dwelling other than a vehicle.” Washington Revised Code

§ 9A.08.020(3) provides for liability for the conduct of

another and states: 

(3) A person is an accomplice of another person in

the commission of a crime if: 

(a) With knowledge that it will promote

or facilitate the commission of the crime, he

15820 CUEVAS-GASPAR v. GONZALES
(i) solicits, commands, encourages, or

requests such other person to commit it; or 

(ii) aids or agrees to aid such other person in planning or committing it. 

To establish the elements of the statutory crime of burglary

under § 9A.52.025(1), the state need not prove intent to commit a specific crime, but rather, can prove intent to commit

any crime. State v. Cantu, 98 P.3d 106, 108 (Wash. Ct. App.

2004). Once the state has shown that a person entered the

premises unlawfully, the inference arises that the entry was

made with intent to commit a crime, and the burden of proof

then shifts to the defense to rebut the inference of criminal

intent. Wash. Rev. Code § 9A.52.040; Cantu, 98 P.3d at 108-

109 (concluding that, because the juvenile defendant offered

no evidence to rebut the statutory inference of intent upon

showing that defendant kicked in his mother’s locked bedroom door without her permission, sufficient evidence supported his conviction for burglary). 

[4] Thus, under Washington law, a person can be guilty of

the offense of burglary if he “enters or remains unlawfully in

a dwelling” with an “intent to commit a crime.” See Cantu,

98 P.3d at 108. We agree with the BIA that the act of entering

is not itself “base, vile or depraved,” and that it is the particular crime that accompanies the act of entry that determines

whether the offense is one involving moral turpitude. See

Matter of M, 2 I. & N. Dec. at 723. Because, under Washington law, an intent to commit any crime satisfies the accompanying crime element of burglary, the offense encompasses

conduct that falls outside the definition of a crime of moral

turpitude. 

For example, under Washington law, a person is guilty of

the crime of malicious mischief if he or she knowingly and

maliciously causes physical damage to the property of another

CUEVAS-GASPAR v. GONZALES 15821
in an amount exceeding $250. See Wash. Rev. Code

§ 9A.48.080 (setting forth the elements of the crime of malicious mischief). Malicious intent includes the wish to “vex,

annoy, or injure” another person and may be inferred from

“an act wrongfully done without just cause or excuse, or an

act or omission of duty betraying a wilful disregard of social

duty.” Wash. Rev. Code § 9A.04.110(12). As we noted in

Rodriguez-Herrera v. INS, 52 F.3d 238 (9th Cir. 1995), “the

[malicious mischief] statute’s reach . . . include[s] pranksters

with poor judgment.” Id. at 240. We concluded in RodriguezHerrera that malicious mischief, as defined by § 9A.48.080,

does not necessarily involve “an act of baseness or depravity

contrary to accepted moral standards” and therefore is not

necessarily a crime involving moral turpitude. Id.

[5] Like the example cited by the BIA in Matter of M, 2 I.

& N. Dec. at 723, of a group of young boys who enter an

abandoned barn intending to play cards, there are numerous

other examples of acts that constitute burglary under the

Washington statute but that cannot be deemed base, vile, or

depraved. See, e.g., United States v. Chu Kong Yin, 935 F.2d

990, 1004 (9th Cir. 1991) (concluding that crime of gambling

did not necessarily involve moral turpitude). The offense of

residential burglary set forth in § 9A.52.025(1) encompasses

conduct that does not necessarily involve moral turpitude. We

conclude that the offense therefore is not a crime involving

moral turpitude under the categorical approach. 

B. Modified Categorical Approach

[6] Because the statute of conviction is broader than the

generic definition of the crime, we proceed to the modified

categorical approach, which allows us to “look beyond the

language of the statute to a narrow, specified set of documents

that are part of the record of conviction, including the indictment, the judgment of conviction, jury instructions, a signed

guilty plea, or the transcript from the plea proceedings.”

Tokatly v. Ashcroft, 371 F.3d 613, 620 (9th Cir. 2004) (inter15822 CUEVAS-GASPAR v. GONZALES
nal quotation marks omitted). See Carty v. Ashcroft, 395 F.3d

1081, 1084 (9th Cir. 2004) (“When a statute is divisible into

several crimes, some of which may involve moral turpitude

and some not, it is appropriate to examine the ‘record of conviction’ to determine which part applies to the defendant.”).

We do not, however, “look beyond the record of conviction

itself to the particular facts underlying the conviction.”

Tokatly, 371 F.3d at 620 (citing Taylor, 495 U.S. at 600). The

Supreme Court has clarified that, in determining whether a

guilty plea to burglary defined by a non-generic statute necessarily admitted elements of the generic offense, our inquiry is

limited “to the terms of the charging document, the terms of

a plea agreement or transcript of colloquy between judge and

defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial

record of this information.” Shepard v. United States, 125

S. Ct. 1254, 1263 (2005). 

[7] We must thus determine whether the record of conviction shows that Cuevas-Gaspar pled guilty to elements that

constitute a crime involving moral turpitude. We have held

that crimes of theft or larceny are crimes involving moral turpitude. See United States v. Esparza-Ponce, 193 F.3d 1133,

1136-37 (9th Cir. 1999) (stating in illegal reentry case that

petty theft constitutes a crime of moral turpitude); Rashtabadi

v. INS, 23 F.3d 1562, 1568 (9th Cir. 1994) (concluding that

grand theft is a crime of moral turpitude). In his signed plea

statement, Cuevas-Gaspar states that, “[o]n March 13, 2002,

in Yakima County, I helped another person take property

without permission from a residence where no one was

home.” Because the underlying crime of theft or larceny is a

crime of moral turpitude, unlawfully entering a residence with

intent to commit theft or larceny therein is likewise a crime

involving moral turpitude. We therefore conclude that,

because Cuevas-Gaspar admitted in his guilty plea to entering

a residence with the intent to steal property from the resiCUEVAS-GASPAR v. GONZALES 15823
dence, his conviction constitutes a crime involving moral turpitude under the modified categorical approach.4

II. Cancellation of Removal

Cuevas-Gaspar attained permanent lawful resident status in

1997. Because his conviction for being an accomplice to burglary in 2002 “stopped the clock,” the BIA concluded that

Cuevas-Gaspar cannot meet the requirement, under INA

§ 240A(a)(2), 8 U.S.C. § 1229b(a)(2), that he have resided in

the United States continuously for seven years “after having

been admitted in any status.”

5

See 8 U.S.C. § 1229b(d)(1);

Toro-Romero, 382 F.3d at 937 (“ ‘Continuous residence,’

however, ‘shall be deemed to end . . . when the alien has committed an offense’ involving a crime of moral turpitude that

renders him either inadmissible or removable.”). 

Cuevas-Gaspar asserts, however, that we should adopt our

reasoning in Lepe-Guitron v. INS, 16 F.3d 1021 (9th Cir.

1994), in which we 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). Lepe-Guitron, 16 F.3d at 1025-26.

Cuevas-Gaspar argues that, similar to the petitioner in Lepe4Cuevas-Gaspar does not argue that his conviction as an accomplice

affects the determination of whether his conviction is for a crime involving moral turpitude. We therefore do not reach this issue. See Arpin v.

Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir. 2001)

(explaining that issue not raised and argued in party’s opening brief is

waived). 

5

In its brief, the government argues that Cuevas-Gaspar’s “eligibility for

cancellation of removal turns on whether Cuevas-Gaspar maintained seven

years continuous residence in the United States ‘after having been admitted in any status.’ ” The government does not dispute that Cuevas-Gaspar

has been a lawful permanent resident for not less than five years, as

required by 8 U.S.C. § 1229b(a)(1). 

15824 CUEVAS-GASPAR v. GONZALES
Guitron, his time in the United States as an unemancipated

minor residing with his lawfully-admitted parents should

count towards the seven years of continuous residence “after

having been admitted in any status” required for cancellation

of removal. See 8 U.S.C. § 1229b(a)(2). Cuevas-Gaspar

asserts that his mother attained permanent resident status in

1990, when he was seven years old, and that he resided with

his parents in the United States from before that time until the

time he was detained. The government urges, and the BIA

agreed, that Lepe-Guitron is inapplicable here because LepeGuitron construed the now-repealed § 212(c) of the INA,

which required a period of “lawful unrelinquished domicile,”

whereas cancellation of removal under INA § 240A(a), 8

U.S.C. § 1229b(a), requires a period of residence “after having been admitted in any status.” 

We apply the two-step inquiry set forth by the Supreme

Court in Chevron U.S.A. Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984), and ask (1) whether “the

statute is silent or ambiguous with respect to the specific

issue,” and if so (2) whether the agency’s interpretation is

based on a reasonable, permissible construction of the statute.

Id. at 842-44; Espejo v. INS, 311 F.3d 976, 978 (9th Cir.

2002). We must defer to the BIA’s interpretation and application of the immigration laws, unless the BIA’s interpretation

is “contrary to the plain and sensible meaning of the statute”

or frustrates the policy that Congress sought to implement.

Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004);

Randhawa v. Ashcroft, 298 F.3d 1148, 1151 (9th Cir. 2002).

But, “[a]n agency interpretation of a relevant provision which

conflicts with the agency’s earlier interpretation is ‘entitled to

considerable less deference’ than a consistently held agency

view.” Young v. Reno, 114 F.3d 879, 883 (9th Cir. 1997)

(quoting INS v. Cardozo-Fonseca, 480 U.S. 421, 446 n.30

(1987)). 

CUEVAS-GASPAR v. GONZALES 15825
A. Statutory Language

Applying the first step of the Chevron test, we look to the

language of the statute. Cancellation of removal under INA

§ 240A, 8 U.S.C. § 1229b, provides in relevant part: 

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(a). The term “admitted” is defined by the

INA 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). 

Section 1229b is silent as to whether a parent’s status may

be imputed to the parent’s unemancipated minor child for purposes of satisfying the requirements of subsections (a)(1) and

(a)(2). We therefore proceed to the second step of the Chevron test, which requires us to determine whether the BIA’s

interpretation of the statute is based on a reasonable construction of the statute. Chevron, 467 U.S. at 844. 

B. Statutory Construction

The BIA rejected Cuevas-Gaspar’s argument that our holding in Lepe-Guitron, which applied to relief under former

§ 212(c) of the INA, should apply to cancellation of removal

15826 CUEVAS-GASPAR v. GONZALES
under INA § 240A(a), 8 U.S.C. § 1229b(a). The BIA concluded that, unlike in Lepe-Guitron, a parent’s period of residence cannot be imputed to the parent’s unemancipated minor

child for purposes of satisfying the requirement, set forth in

§ 1229b(a)(2), that the alien have resided in the United States

continuously for seven years “after having been admitted in

any status.” 

To determine whether the BIA’s interpretation of

§ 1229b(a) is reasonable, we look to the plain and sensible

meaning of the statute, the statutory provision in the context

of the whole statute and case law, and to legislative purpose

and intent. See Padash v. INS, 358 F.3d 1161, 1169-72 (9th

Cir. 2004) (applying the tools of statutory construction).

Because the parties’ arguments, and therefore our analysis,

refers to our holding in Lepe-Guitron, we begin by summarizing our holding in that case. 

1. Lepe-Guitron

[8] We note that neither the BIA nor any of our sister circuits has decided the issue before us — whether the lawful

admission and legal permanent residence of a parent can be

imputed to a minor, dependent child to satisfy the continuous

residence following admission requirement for cancellation of

removal under 8 U.S.C. § 1229b. See Matter of Blancas-Lara,

23 I. & N. Dec. 458, 459 (BIA 2002) (“We do not find it necessary to reach the question of imputed residence in this

case.”). We have held, however, that the lawful residence of

a parent can be imputed to the child to satisfy the seven-year

“lawful unrelinquished domicile” requirement for the nowrepealed relief from deportation known as § 212(c) waiver. 

In Lepe-Guitron, the petitioner’s parents “immigrated to the

United States on September 16, 1976, and successfully

applied to immigrate Lepe-Guitron, his sister, and one of his

brothers.” 16 F.3d at 1022. Although his parents and his sister

attained permanent resident status two years later, due to a

CUEVAS-GASPAR v. GONZALES 15827
processing error, Lepe-Guitron did not attain permanent resident status until 1986. Id. at 1022-23. In 1989, Lepe-Guitron

pled guilty and was convicted in state court of a deportable

offense. Id. at 1023. Lepe-Guitron argued that he was eligible

for relief under INA § 212(c), which provided: 

Aliens lawfully admitted for permanent residence

who temporarily proceeded abroad voluntarily and

not under an order of deportation, and who are

returning to a lawful unrelinquished domicile of

seven consecutive years, may be admitted in the discretion of the Attorney General without regard to

[various grounds for the exclusion of aliens seeking

entry into the United States]. 

8 U.S.C. § 1182(c) (repealed 1996). 

When we rendered our decision in Lepe-Guitron, we had

interpreted the § 212(c) requirement of seven years of “lawful

unrelinquished domicile” in Castillo-Felix v. INS, 601 F.2d

459 (9th Cir. 1979), as requiring lawful unrelinquished domicile after admission for permanent residence. Id. at 467 (“[T]o

be eligible for § 1182(c) relief, aliens must accumulate seven

years of lawful unrelinquished domicile after their admission

for permanent residence.”) (emphasis added). Lepe-Guitron

had not accumulated seven years of domicile following his

admission for permanent residence and therefore argued that

his “lawful unrelinquished domicile” should be counted from

the date his parents attained permanent resident status

because, at that time, he was an unemancipated minor residing with his parents. Lepe-Guitron, 16 F.3d at 1024. 

We agreed. We noted that the common law definition of

“lawful domicile” means the simultaneous existence of lawful

presence and the lawful intent to remain. We then reasoned

that children are “legally speaking, incapable of forming the

necessary intent to remain indefinitely in a particular place”

and that a child’s domicile therefore follows that of his par15828 CUEVAS-GASPAR v. GONZALES
ents, a conclusion “unremarkable at common law.” Id. at

1025. 

Notably with respect to our analysis here, we observed that

other immigration statutes and regulations “giving a high priority to the relation between permanent resident parents and

their children lend strength to our analysis.” Id. We pointed

to (1) 8 U.S.C. §§ 1152 and 1153, which provide a visa quota

preference for the alien children of legal permanent residents

and citizens; (2) 8 U.S.C. § 1182(a)(6)(E)(ii), which provides

a waiver of excludability for certain immigrants who have

helped their alien children enter the United States illegally, in

the interest of family reunification; and (3) 8 C.F.R.

§ 245.1(d)(vi)(B)(1), which then provided that a foreignresident child of a permanent resident alien is given the same

priority date and preference category as that of his or her parents.6 Lepe-Guitron, 16 F.3d at 1025. 

We therefore concluded that an unemancipated minor

residing with his parents shares the same domicile as that of

his parents, and that the petitioner’s period of lawful domicile

therefore began when his parents attained permanent resident

status while he was a child.7Id. at 1025-26. We explained

that, on remand, if Lepe-Guitron can show that his parents

have accrued seven years of lawful unrelinquished domicile

after having been lawfully admitted for permanent residence,

then Lepe-Guitron should be considered likewise to have

accrued seven years of continuous residence after having been

6Although the citation in Lepe-Guitron is to § 245.1(d)(vi)(B)(1), it

appears that the citation should have been to 8 C.F.R. § 245.(d)(2)(vi)

(B)(1), which has been amended since Lepe-Guitron was decided in 1994.

7The Second Circuit has agreed, for purposes of § 212(c) relief, that “[a]

minor’s domicile is the same as that of its parents, since most children are

presumed not legally capable of forming the requisite intent to establish

their own domicile.” Rosario v. INS, 962 F.2d 220, 224 (2d Cir. 1992).

The court held that, for purposes of § 212(c) relief, an unemancipated

minor’s domicile is the same as that of his parents, even if the minor is

not physically present in the United States. Id.

CUEVAS-GASPAR v. GONZALES 15829
lawfully admitted for permanent residence and therefore eligible for § 212(c) relief. Id. at 1026.

2. Statutory Provision in Context

We turn now to an application of the tools of statutory construction in order to determine whether the BIA’s interpretation of § 1229b(a) as being unamenable to imputation is a

reasonable one. See Padash, 358 F.3d at 1169. In analyzing

the statutory provision in the context of the governing statute

as a whole, we presume congressional intent to create a coherent regulatory scheme. Id. at 1170 (citing FDA v. Brown &

Williamson Tobacco Corp., 529 U.S. 120, 132-33 (2000)). “In

this regard, we must ‘mak[e] every effort not to interpret [the]

provision [at issue] in a manner that renders other provisions

of the same statute inconsistent, meaningless, or superfluous.’ ” Id. at 1170-71 (quoting Boise Cascade Corp. v. EPA,

942 F.2d 1427, 1432 (9th Cir. 1991)). 

Looking at the statute in context, we are instructed by our

observation in Lepe-Guitron that our immigration statutes and

regulations are replete with provisions “giving a high priority

to the relation between permanent resident parents and their

children.” See Lepe-Guitron, 16 F.3d at 1025. We also note

that both the BIA and this court repeatedly have held 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. 

For example, in Vang v. INS, 146 F.3d 1114 (9th Cir.

1998), we observed that, in many areas of immigration law,

the status of the parent is imputed to the minor child. Id. at

1116. We noted that, under INS regulations, the child of a refugee or asylee is generally entitled to the same status as his

or her parent. Id. (citing 8 C.F.R. §§ 207.1(e) and 208.21(a)).

We also noted that in Lepe-Guitron, we “followed the ‘unremarkable’ common law concept ‘that a child’s domicile fol15830 CUEVAS-GASPAR v. GONZALES
lows that of his or her parents’ in the 212(c) context.” Id.

(quoting Lepe-Guitron, 16 F.3d at 1025). We explained that

“it would be unreasonable to hold an adolescent responsible

for arranging or failing to arrange permanent resettlement.”

Id. (internal quotation marks and citation omitted). We then

concluded that “[w]e follow the same principle in determining

whether a minor has firmly resettled in another country, i.e.,

we 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. 

Similarly, in Senica v. INS, 16 F.3d 1013 (9th Cir. 1994),

we imputed a parent’s knowledge or state of mind to the parent’s minor children with respect to grounds for inadmissibility. In Senica, the INS commenced deportation proceedings

against Maria Senica, her husband, and their two children, as

having been excludable at entry and for having entered the

United States by fraud or by willfully misrepresenting a material fact. Id. at 1014. Senica had entered the United States

with her children under a statutory preference for spouses and

children of lawful permanent residents. Senica admitted that,

at the time, she knew that her spouse, Rodrigo Senica, had

lied about his status at the time of his entry and that the children therefore were not eligible for entry on the grounds

claimed. Id. The children conceded deportability on the basis

of entry without valid documents, and applied for waivers

under 8 U.S.C. § 1182(k) as immigrants who were unaware of

their ineligibility for admission and who could not have discovered the ineligibility by the exercise of reasonable diligence. Id. We concluded that the BIA was correct in imputing

the parent’s knowledge of ineligibility for admission to the

children. Id. at 1015. We observed that “[t]he BIA has

imputed a parent’s knowledge or state of mind to a child in

other situations,” and reasoned 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 1015-16. We also

CUEVAS-GASPAR v. GONZALES 15831
pointed out the “illogical consequences” that would flow from

a contrary decision, reasoning that parents of minor children

could file fraudulent applications for admission on behalf of

their minor children and subsequently, upon discovery of the

fraud, become derivatively eligible for waiver of deportation

by asserting that the children were innocent of the parents’

fraud. Id. at 1016. 

Finally, we note that the BIA has commonly imputed a parent’s abandonment of permanent legal resident status to the

parent’s minor children. See Matter of Huang, 19 I. & N. Dec.

749, 750 n.1 (BIA 1988); Matter of Zamora, 17 I. & N. Dec.

395, 396 (BIA 1980); Matter of Winkens, 15 I. & N. Dec. 451,

452 (BIA 1975). In Zamora, the BIA held that the voluntary

and intended abandonment of lawful permanent resident status by the parent of an unemancipated minor child is imputed

to the child, who is deemed also to have abandoned his lawful

permanent resident status. Zamora, 17 I. & N. at 396. Likewise, in Winkens, the BIA reasoned that the parents’ abandonment of their lawful permanent resident status was imputed to

their minor child “who was subject to their custody and control.” Winkens, 15 I. & N. Dec. at 452. The BIA further reasoned that the child “had gained lawful permanent resident

status through them, and he lost it when they abandoned their

residence and took him with them.” Id.

Here, the BIA concluded that because § 1229b(a)(2)

requires residence “after having been admitted,” the commonly applied principle of imputation does not apply here as

it did with respect to former § 212(c) waiver, which required

“lawful unrelinquished domicile.” Specifically, the BIA concluded that, because “admitted” is a term of art, defined by

the INA 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 mother’s adjustment of status to

legal permanent resident cannot be imputed to her unemancipated minor child because unlike domicile, which depends on

intent or capacity, “admission” does not depend on either

15832 CUEVAS-GASPAR v. GONZALES
intent or capacity, but rather, on inspection and authorization

by an immigration officer. 

[9] While former § 212(c) and § 1229b(a) do indeed use

different terms with respect to the seven-year residency

requirement for relief, for the following reasons, we conclude

that, in the context of the statute as a whole, this difference

does not justify a departure from the INA’s policy of putting

a high priority on relations between permanent legal residents

and their children or from the BIA’s consistent interpretation

of the immigration laws and regulations as allowing for imputation of a parent’s status to unemancipated minor children.

First, the BIA’s refusal to impute a parent’s permanent resident status here conflicts with the BIA’s consistent willingness to impute a parent’s intent, state of mind, and status to

a child and we therefore afford less deference to the BIA’s

interpretation. See Young, 114 F.3d at 883 (citing INS v.

Cardoza-Fonseca, 480 U.S. 421, 446 n.30 (1987)). 

Second, a close examination of our holding in LepeGuitron and of the definition of “lawful unrelinquished domicile” demonstrates that the difference between “domicile” and

residence “after having been admitted in any status” is not, as

the BIA asserts, so great as to be dispositive — an observation

that is confirmed by the history of § 1229b(a), as discussed in

the following section. In Lepe-Guitron, the petitioner had

lived in the United States for 10 years prior to his attainment

of permanent resident status and for 13 years prior to his conviction for a drug crime. 16 F.3d at 1022-23. But because we

had interpreted § 212(c) as requiring seven years of “lawful

unrelinquished domicile” after admission for permanent residence, Castillo-Felix, 601 F.2d at 467, Lepe-Guitron could

satisfy that requirement only through the imputation of his

mother’s adjustment to permanent resident status 11 years

prior to his conviction.8See Lepe-Guitron, 16 F.3d at 1022-

8Adjustment of status to that of permanent resident constitutes lawful

admission to the United States. See 8 U.S.C. § 1255(a) (stating that the

CUEVAS-GASPAR v. GONZALES 15833
24. Thus, in holding that a parent’s “lawful unrelinquished

domicile” is imputed to the parent’s minor children, we necessarily held that the parent’s admission for permanent residence was also imputed to the parent’s minor children. 

[10] In sum, the BIA’s interpretation of the § 1229b(a)(2)

requirement runs contrary to both our reasoning in LepeGuitron — which necessarily held that a parent’s admission

to permanent resident status is imputed to the child — and to

the BIA’s own longstanding policy of imputation, and therefore is unreasonable. Because the BIA’s interpretation is

unreasonable, we need not defer to it. See Chevron, 467 U.S.

at 842-44 (explaining that we defer to the agency’s interpretation of a statute so long as it is reasonable); Navarro-Aispura

v. INS, 53 F.3d 233, 235-36 (9th Cir. 1995) (declining to defer

to agency’s decision where not supported by a rational explanation). 

3. Legislative Purpose and Intent

Our conclusion is consistent with congressional intent, as

revealed by an examination of the purpose underlying the

statutory scheme. See United States v. Buckland, 289 F.3d

558, 565 (9th Cir. 2002) (en banc) (stating that the court

should look to legislative purpose where Congress’ intent cannot be determined from a plain reading). 

INA § 240A, 8 U.S.C. § 1229b, was enacted as part of the

Illegal Immigration Reform and Immigrant Responsibility Act

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

(Sept. 30, 1996). IIRIRA amended the INA in relevant part to

expand the definition of aggravated felonies, to provide for

Attorney General may adjust the status of an alien “to that of an alien lawfully admitted for permanent residence”); Firestone v. Howerton, 671 F.2d

317, 320 n.5 (9th Cir. 1982) (observing that an applicant for adjustment

of status is assimilated to the position of application for entry and thus

subject to eligibility criteria for admission). 

15834 CUEVAS-GASPAR v. GONZALES
expedited removal of aliens convicted of aggravated felonies,

and to restrict the forms of relief available to aliens convicted

of certain crimes. See, e.g., INS v. St. Cyr, 533 U.S. 289, 297

(2001) (explaining that IIRIRA repealed § 212(c) and

replaced it with 8 U.S.C. § 1229b, which “gives the Attorney

General the authority to cancel removal for a narrow class of

. . . aliens . . . . So narrowed, that class does not include anyone previously ‘convicted of any aggravated felony’ ”). Subsection (a) of § 240A applies to aliens with legal permanent

resident status, and subsection (b) applies to nonpermanent

residents. Compare 8 U.S.C. § 1229b(a) (“Cancellation of

removal for certain permanent residents.”) with 8 U.S.C.

§ 1229b(b) (“Cancellation of removal and adjustment of status for certain nonpermanent residents.”). Congress explained

that “[n]ew section 240A establishes revised rules for the type

of relief that is currently available to excludable and deportable aliens under section 212(c) and 244(a)-(d).” H.R. Conf.

Rep. 104-828, at 213 (1996). Congress further explained that

“[s]ection 240A(c) . . . is intended to replace and modify the

form of relief now granted under section 212(c) of the INA.”

Id.

While it is well-established, from both the plain language

of the statute and legislative history, that Congress replaced

former § 212(c) with § 1229b(a) in part to render relief from

removal unavailable to legal permanent residents who had

been convicted of an aggravated felony, see St. Cyr, 533 U.S.

at 297, neither the language of the statute nor the legislative

reports provide any insight into why Congress changed the

residency requirement from the “lawful unrelinquished domicile of seven consecutive years” under former § 212(c) to the

two-part requirement under § 1229b(a) that the alien “(1) has

been an alien lawfully admitted for permanent residence for

not less than 5 years, [and] (2) has resided in the United States

continuously for 7 years after having been admitted to any

status.” 8 U.S.C. § 1229b(a). The history of the courts’ and

the BIA’s interpretation of former § 212(c) reveals, however,

that the change in residency requirement was intended to clear

CUEVAS-GASPAR v. GONZALES 15835
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). 

The BIA had long held that the seven years of domicile

required by § 212(c) must follow admission as a lawful permanent resident. See, e.g., Matter of S., 5 I. & N. Dec. 116,

117-18 (BIA 1953). Under this interpretation, time spent in

the United States in another legal immigration status — for

example, temporary status — did not count towards the

seven-year requirement. See id. Over time, however, various

courts of appeals disagreed. Initially, the Second Circuit held,

based on both the statutory language and legislative history,

that the seven years of domicile need not occur after admission for permanent legal resident status. See Lok v. INS, 548

F.2d 37, 39-41 (2d Cir. 1977). The Seventh Circuit and the

Fifth Circuit subsequently adopted the Second Circuit’s

approach. See White v. INS, 75 F.3d 213, 216 (5th Cir. 1996);

Castellon-Contreras v. INS, 45 F.3d 149, 152-54 (7th Cir.

1995). In contrast, the Fourth and Tenth Circuits accepted the

BIA’s interpretation in all respects. See Michelson v. INS, 897

F.2d 465, 469 (10th cir. 1990); Chiravacharadhikul v. INS,

645 F.2d 248, 249 (4th Cir. 1981). 

As discussed above, the Ninth Circuit initially agreed with

the BIA. We deferred to the BIA in Castillo-Felix, and held

that domicile must follow admission for permanent resident

status. Castillo-Felix, 601 F.2d at 467. Subsequently, however, we modified our position to allow aliens granted temporary resident status under the amnesty provisions of the

Immigration Reform and Control Act of 1986 (“IRCA”), 8

U.S.C. § 1255a, to count the period as a temporary resident

toward the seven-year domicile requirement. See Ortega de

Robles v. INS, 58 F.3d 1355, 1360-61 (9th Cir. 1995). 

Meanwhile, the BIA continued to maintain the position that

aliens who acquired legal permanent resident status through

the legalization provisions of IRCA — which required an ini15836 CUEVAS-GASPAR v. GONZALES
tial period of temporary resident status — could not count the

years spent in temporary status toward the seven-year domicile requirement. See Matter of Ponce de Leon-Ruiz, 21 I. &

N. Dec. 154, 159 (BIA 1996) (reasoning that there was no

controlling Eighth Circuit case to the contrary). The BIA did,

however, apply our decision in Ortega de Robles, and in a

case decided on the same day as Matter of Ponce de LeonRuiz, made an exception to its position and adopted the

Ortega de Robles rule only with respect to cases arising in the

Ninth Circuit. See Matter of Cazares, 21 I. & N. Dec. 188,

193 (BIA 1996). 

In enacting the new cancellation of removal provision,

Congress resolved the conflicting interpretations of “unrelinquished lawful domicile” by requiring five years of status as

a permanent resident while at the same time recognizing that

the alien could count a period spent in non-permanent status

toward a total period of residence of seven years. See 8 U.S.C.

§ 1229b(a). Viewed in the context of the conflicting interpretations that preceded Congress’ enactment of § 1229b, it is

clear that the requirement of continuous residence for “7 years

after having been admitted in any status,” 8 U.S.C.

§ 1229b(a)(2) is not, as the BIA asserts, intended to narrow

the prior residency rule of § 212(c) by imposing a new, more

onerous requirement of inspection and authorization by an

immigration officer. See 8 U.S.C. § 1101(a)(13) (defining

“admitted” as “the lawful entry of the alien . . . after inspection and authorization by an immigration officer”). Rather, the

language of the new two-part requirement apparently was

designed to clear up prior confusion and to strike a balance

between the conflicting interpretations of the courts of appeals

and the BIA by counting a limited period of time spent in

non-permanent status while still requiring at least five years

of permanent resident status. 

Our observations are underscored by the fact that Congress,

in enacting the cancellation of removal provision, imposed a

seemingly less onerous residency requirement on nonCUEVAS-GASPAR v. GONZALES 15837
permanent residents, requiring only that the alien “ha[ve]

been physically present in the United States for a continuous

period of not less than 10 years immediately preceding the

date of such application.” 8 U.S.C. § 1229b(b)(1)(A). If we

were to construe the term “admitted,” in § 1229b(a)(2) as barring imputation because “admitted” is defined as requiring

entry with inspection and authorization, we would in effect be

requiring of legal permanent residents more than the statute

requires of non-permanent residents, thus frustrating Congress’s well-established policy of affording aliens with legal

permanent resident status more benefits than non-permanent

residents under the INA. Just as we accord less deference to

an agency interpretation that conflicts with an earlier,

consistently-held agency view, we also do not defer to an

agency interpretation that frustrates the policy that Congress

sought to implement. See Simeonov, 371 F.3d at 535; Randhawa, 298 F.3d at 1151. Our interpretation of the

§ 1229b(a)(2) requirement as allowing for imputation of a

parent’s status to the parent’s minor child is consistent with

Congress’ apparent intent to address the BIA’s restrictive

interpretation of the “domicile” requirement of former

§ 212(c). 

Finally, we note that our interpretation adheres to the general canon of construction that resolves ambiguities in favor

of the alien. See, e.g., Cardoza-Fonseca, 480 U.S. at 449

(observing that there is a “longstanding principle of construing any lingering ambiguities in deportation statutes in favor

of the alien”); Hernandez v. Ashcroft, 345 F.3d 824, 840 (9th

Cir. 2003) (explaining that, in the immigration context,

“doubts are to be resolved in favor of the alien”). In Matter

of Vizcaino, 19 I .& N. Dec. 644 (BIA 1988), the BIA

observed that, where the expansion of relief “clearly was

intended as a generous provision,” the provision “should . . .

be generously interpreted.” Id. at 648. Here, Congress’ adoption of a two-step residency requirement in place of the former one-step “unrelinquished lawful domicile” requirement

clearly was intended as a generous provision — allowing

15838 CUEVAS-GASPAR v. GONZALES
legal permanent residents to count two years of residence in

the United States in non-permanent status toward the requirement — and therefore should be interpreted to at least allow

for the imputation that we held in Lepe-Guitron was required

under former § 212(c). Allowing aliens like Cuevas-Gaspar to

attempt to qualify for one of only 4,000 grants of relief under

§ 1229b does not run counter to the general restrictiveness of

the post-IIRIRA INA.9 Rather, by allowing imputation, we

merely implement the countervailing and co-equal congressional policy of recognizing that presence in the United States

of an extended length gives rise to such strong ties to the

United States that removal would result in undue hardship.

See S. Rep. No. 1515, 81st Cong., 2d Sess. 383 (1950) (discussing the purpose of enacting former § 212(c) relief). 

[11] For the foregoing reasons, we hold 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. 

CONCLUSION

Accordingly, Cuevas-Gaspar’s petition for review is

granted with respect to his eligibility for cancellation of

removal, and the matter is remanded to the BIA for further

proceedings consistent with this opinion. 

PETITION FOR REVIEW GRANTED.

9The Attorney General may grant cancellation of removal to only 4,000

aliens per fiscal year, under the numerical constraints enacted by IIRIRA.

8 U.S.C. § 1229b(e)(1). In 1997, the first year that the quota was in effect,

the limit was reached in the month of February. See Stephen H. Legomsky, Immigration and Refugee Law and Policy 465 (1997). 

CUEVAS-GASPAR v. GONZALES 15839
FERNANDEZ, Circuit Judge, dissenting: 

I cannot agree with the proposition that burglary of a dwelling is not necessarily a crime of moral turpitude. Washington’s burglary statute punishes anyone who, “with intent to

commit a crime against a person or property therein . . . enters

or remains unlawfully in a dwelling other than a vehicle.”

Wash. Rev. Code § 9A.52.025(1). A dwelling is a “building

or structure . . . which is used or ordinarily used by a person

for lodging.” Id. § 9A.04.110(7). Since 1935, Ninth Circuit

cases have consistently treated burglary as a crime involving

moral turpitude. See Baer v. Norene, 79 F.2d 340, 341 (9th

Cir. 1935); see also, e.g., Alberto-Gonzalez v. INS, 215 F.3d

906, 908 n.5 (9th Cir. 2000); Perez v. INS, 116 F.3d 405, 407

(9th Cir. 1997); de La Cruz v. INS, 951 F.2d 226, 228 (9th

Cir. 1991); Mahini v. INS, 779 F.2d 1419, 1421 (9th Cir.

1986). I have found no case from this or any other circuit

holding otherwise. See, e.g., Sierra-Reyes v. INS, 585 F.2d

762, 763 (5th Cir. 1978); United States v. Stromberg, 227

F.2d 903, 905 (5th Cir. 1955); Rudolph v. United States ex rel.

Rock, 6 F.2d 487, 490 (D.C. Cir. 1925). In fact, in Ye v. INS,

214 F.3d 1128, 1134 n.5 (9th Cir. 2000), this court said that

even vehicle burglary,1 which is inherently less intrusive than

burglary of a dwelling, is a crime involving moral turpitude.

Hence, even if burglary were not a malum in se crime—which

it clearly is—the law of this circuit would dictate a finding of

a crime of moral turpitude. See Beltran-Tirado v. INS, 213

F.3d 1179, 1184-85 (9th Cir. 2000) (indicating that malum in

se crimes are crimes involving moral turpitude); see also

United States v. Barker, 514 F.2d 208, 266 n.70 (D.C. Cir.

1975) (saying that “[b]urglary is clearly malum in se”);

Rudolph, 6 F.2d at 490 (same). 

Requiring the BIA to look beyond the burglary conviction

to Cuevas’ intent is unnecessary and improper. This is not a

1The illegal entry of a vehicle with the intent to commit a felony therein.

Cal. Penal Code § 459. 

15840 CUEVAS-GASPAR v. GONZALES
case involving burglary of a vending machine, a boat, a commercial establishment, or any other uninhabited structure. It

involves the burglary of a residence. Whatever specific crime

Cuevas intended to commit once inside the dwelling,2 his illegal presence alone was base, or depraved and contrary to the

accepted rules of morality. Grageda v. INS, 12 F.3d 919, 921

(9th Cir. 1993). The Supreme Court has declared that: 

The fact that an offender enters a building to commit

a crime often creates the possibility of a violent confrontation between the offender and an occupant . . .

who comes to investigate. And the offender’s own

awareness of this possibility may mean that he is

prepared to use violence if necessary to carry out his

plans or to escape. 

Taylor v. United States, 495 U.S. 575, 588, 110 S. Ct. 2143,

2153, 109 L. Ed. 2d 607 (1990); cf. United States v. M.C.E.,

232 F.3d 1252, 1255-56 (9th Cir. 2000) (applying a categorical approach to hold that residential burglary is a crime of

violence because of the risk of a violent confrontation with

the occupant); United States v. Becker, 919 F.2d 568, 573 (9th

Cir. 1990) (saying that “[t]he confluence of common sense

and precedent lead to the conclusion that the unauthorized

daytime entry of the dwelling of another with the intent to

commit a larceny or any felony carries with it a substantial

risk that force will be used against the person or property of

another”). “ ‘The fact that [a burglar] may be contemplating

a minor offense will be no solace to those who may reasonably fear the worst and who may react with measures that

may well escalate the criminal purposes of the intruder.’ ”

M.C.E., 232 F.3d at 1256 n.5 (quoting Model Penal Code

§ 221.1 cmt. 3(c), at 75 (1980)). Clearly, the intrusion into

someone’s home with the intent to commit a crime therein is

2

In fact, we know from the Plea Agreement that Cuevas admitted that

he “helped another person take property without permission” from the

home. 

CUEVAS-GASPAR v. GONZALES 15841
a categorically depraved act. Thus, the majority improperly

encumbers the Immigration Judges with the task of determining the facts underlying a conviction for burglary of a

dwelling—a job often impossible given the scant facts in

many records of conviction. See Shepard v. United States, 544

U.S. ___, ___, 125 S. Ct. 1254, 1260-63, 161 L. Ed. 2d 205

(2005). Still, it does ultimately decide that the crime here was

one of moral turpitude. Of course, I agree that it was. 

However, we again part company on the question of cancellation of removal. Cuevas seeks cancellation of his

removal by relying on 8 U.S.C. § 1229b(a) (INA § 240A(a)).

That statute allows the Attorney General to cancel the

removal of certain permanent residents if the following conditions are met: (1) the alien has been “lawfully admitted for

permanent residence for not less than 5 years,” (2) the alien

“has resided in the United States continuously for 7 years

after having been admitted in any status,” and (3) the alien

“has not been convicted of any aggravated felony.” Id. The

BIA found that Cuevas failed the second requirement because

he had been admitted for only a little over four years before

he committed burglary.3 I agree. 

Cuevas argues that because he was a minor when his

mother achieved lawful permanent resident (LPR) status in

December, 1990, his mother’s LPR date should be imputed to

him, which would give him more than eleven years of continuous residence after admission and satisfy part (2). For that

proposition, Cuevas relies on a prior case. See Lepe-Guitron

v. INS, 16 F.3d 1021 (9th Cir. 1994). He claims that because

Lepe-Guitron imputed the parents’ “lawful unrelinquished

3

If an alien is being removed for committing a crime, the period of continuous residence ends at the time the crime was committed. 8 U.S.C.

§ 1229b(d)(1). Cuevas clearly satisfies part (1). He was lawfully admitted

for permanent residence on December 4, 1997, and was issued a notice to

appear on March 18, 2003. He satisfies part (3) because he was sentenced

to less than one year for his crime of burglary. See 8 U.S.C.

§ 1101(a)(43)(G). 

15842 CUEVAS-GASPAR v. GONZALES
domicile” to a minor child, this panel should impute a mother’s lawful admission date to her minor son. I decline to do

so. 

Lepe-Guitron does not apply to Cuevas’ case. There, we

interpreted INA § 212(c), which, prior to its repeal in 1997,4

allowed cancellation of deportation for aliens who had maintained “a lawful unrelinquished domicile of seven consecutive

years.” 8 U.S.C. § 1182(c) (1997). We reasoned that because

a minor is not legally capable of forming the intent necessary

to establish domicile, his or her legal domicile must be determined by his custodial parents. Lepe-Guitron, 16 F.3d at

1025. Moreover, we emphasized that Lepe-Guitron, “legally

entered the United States with his parents, [and] was always

legally within the country . . . .” Id. at 1024. This, we held,

was the pivotal reason for us to stray from precedent and

impute his parents’ status to him. Id. (contrasting CastilloFelix v. INS, 601 F.2d 459, 461 (9th Cir. 1979)). 

That does not help Cuevas. First, the new cancellation of

removal statute contains no domicile requirement. Instead, it

requires seven years of residence after having been admitted

in any status. 8 U.S.C. § 1229b(a)(2). Residence contains no

element of subjective intent. See 8 U.S.C. § 1101(a)(33)

(“The term ‘residence’ means place of general abode; the

place of general abode of a person means his principal, actual

dwelling place in fact, without regard to intent.”). Thus,

unlike Lepe-Guitron, there is no legal reason for us to turn to

his parents to determine Cuevas’ intent. Second, Cuevas readily admits that he was not legally admitted until he obtained

LPR status in December, 1997. “Admitted” as used in § 240A

means “the lawful entry . . . into the United States after

inspection and authorization by an immigration officer.” 8

U.S.C. § 1101(a)(13)(A) (emphasis added). Thus, a necessary

element of the Lepe-Guitron decision is absent here. 

4

Illegal Immigration Reform and Immigrant Responsibility Act of 1996,

Pub. L. No. 104-208, Div. C, Tit. III, § 304(b), 110 Stat. 3009. 

CUEVAS-GASPAR v. GONZALES 15843
Without Lepe-Guitron, there is no precedent to help

Cuevas. Instead, he is left with a statute that could not be

more clear. It requires seven years of residence subsequent to

admission; yet, by Cuevas’ own concession, he committed

burglary just four years and three months after being admitted. Even if one could argue that the statute is ambiguous, the

BIA’s interpretation is quite reasonable, and to that we must

defer. See INS v. Aguirre-Aguirre, 526 U.S. 415, 424, 119

S. Ct. 1439, 1445, 143 L. Ed. 2d 590 (1999); Chevron U.S.A.

Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-45,

104 S. Ct. 2778, 2781-83, 81 L. Ed. 2d 694 (1984). Thus the

BIA correctly determined that Cuevas is ineligible for cancellation of removal under 8 U.S.C. § 1229b(a). 

The majority’s concern for aliens who have been here a

long time, even residential burglars like Cuevas, has caused

it to find a path that may allow Cuevas an opportunity to stay

in this country. But Congress has shown more concern for his

victims than for him and has provided that our society need

not abide such as he. It is not for us to listen to the susurrant

promptings of our own convictions rather than the stentorian

proclamations of the legislature. 

Thus, I respectfully dissent.

15844 CUEVAS-GASPAR v. GONZALES