By Attorneys Robert L. Reeves & Nancy E. Miller
Last week we discussed the fact that the lies from one spouse can be imputed to the other. This week, we will discuss what else can and cannot be imputed between family members.
Over the years, the Ninth Circuit Court of Appeals has allowed a parent’s status, intent, or state of mind to be imputed to the parent’s unemancipated minor child in many instances. The reason for this is that the child lacks the legal capacity to form an intent and cannot be faulted for failing to secure a legal status. Therefore, if the minor child is residing with the parent, the parent’s status, intent or state of mind is imputed to the child. This article will discuss instances where imputation has been applied and where it has not, including recent developments in this area of law. In the examples given, some phrases are terms of art (meaning that they have specific legal meanings that differ from the plain language interpretation). The applicability of those phrases to individual cases should be discussed with an experienced, knowledgeable immigration attorney.
For example, a person who flees his home country and seeks asylum in the United States is ineligible for that relief if he has “firmly resettled” in a third country. In Vang v. I.N.S., the court held that imputation applies for purposes of whether a minor had firmly resettled in another country. In other words, if the parent had firmly resettled, so has the minor.
Under Senica v. I.N.S., the court held that a parent’s knowledge or state of mind concerning a fraudulent application is imputed to the parent’s child with respect to grounds of inadmissibility. This means that the minor can be tied to the parent’s knowledge of a fraudulent application.
When applying for cancellation of removal for certain permanent residents, the applicant must show that he has been an alien lawfully admitted for permanent residence for not less than 5 years; that he has resided in the United States continuously for 7 years after having been admitted in any status and that he has not been convicted of an aggravated felony. In Mercado-Zazueta v. Holder, decided in 2009, the court held that imputation applies for purposes of the five-year permanent resident requirement for cancellation. In Cuevas-Gaspar v. Gonzales, decided in 2005, the court had already held that for purposes of satisfying the seven-years of continuous residence “after having been admitted in any status”, the parent’s admission for permanent resident status is imputed to the parent’s unemancipated minor child residing with that parent.
However, in Saucedo-Arevalo v. Holder, which the Ninth Circuit decided last week, it held that the 10- year continuous physical presence requirement for cancellation of removal for certain nonpermanent residents cannot be imputed from the parent to the child. In distinguishing this case from those discussed above, the court stated that “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”. The court went on to explain that physical presence is a state of being and not a state of mind. The person either was Acorporeally within the borders of the United States or he was not. [If] he was not, he cannot meet the physical presence requirement and there is no legal basis for imputing his parent’s physical presence.
In the two different types of cancellation cases, the court seems to be distinguishing between residence – which involves intention (a state of mind) and corporeal presence (where are you physically standing). The imputation doctrine does seem to be in flux. Whether or not it is beneficial or harmful to your situation and whether it is still available is something you should discuss with a knowledgeable, experienced immigration attorney.