Marina Saucedo-Arevalo v. Eric Holder, Jr.

Filing

FILED PER CURIAM OPINION (SUSAN P. GRABER, RAYMOND C. FISHER and CONSUELO B. MARSHALL) DENIED. FILED AND ENTERED JUDGMENT. [7697261]

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Corrected Reprint 4/7/2011
FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARINA SAUCEDO-AREVALO,
Petitioner,
v.
ERIC H. HOLDER JR., Attorney
General,
Respondent.


No. 09-73682




B.I.A. No.
A099-577-198
OPINION

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
January 14, 2011—Seattle, Washington
Filed March 29, 2011
Before: Susan P. Graber and Raymond C. Fisher,
Circuit Judges, and Consuelo B. Marshall,*
Senior District Judge.
Per Curiam Opinion

*The Honorable Consuelo B. Marshall, United States Senior District
Judge for the Central District of California, sitting by designation.

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SAUCEDO-AREVALO v. HOLDER

COUNSEL
Henry Cruz and Stephanie Thorpe, Rios & Cruz, P.S., Seattle,
Washington, for the petitioner.
M. Jocelyn Lopez Wright and Nancy E. Friedman, Office of
Immigration Litigation, United States Department of Justice,
Washington, D.C., for the respondent.

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OPINION
PER CURIAM:
Petitioner Marina Saucedo-Arevalo petitions for review of
the Board of Immigration Appeals’ (“BIA”) denial of cancellation of removal under 8 U.S.C. § 1229b(b)(1). Petitioner
entered the country in 2002 and therefore cannot satisfy the
10-year continuous physical presence requirement. Her
mother entered the country in 1993, but the BIA held that her
mother’s physical presence cannot be imputed to Petitioner
for purposes of cancellation of removal. Reviewing de novo,
Castillo-Cruz v. Holder, 581 F.3d 1154, 1158-59 (9th Cir.
2009), we agree. Accordingly, we deny the petition.
[1] “[T]his court repeatedly ha[s] 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 . . . .”
Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1024 (9th Cir.
2005). Because a child lacks the legal capacity to form an
intent and cannot be faulted for failing to secure a legal status,
we have imputed the parent’s status, intent, or state of mind
to a child residing with the parent. For instance, “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)[(2)], a parent’s admission for permanent resident status is imputed to the parent’s
unemancipated minor children residing with the parent.” Id.
at 1029; see also Mercado-Zazueta v. Holder, 580 F.3d 1102,
1103 (9th Cir. 2009) (holding that imputation applies for purposes of the five-year permanent residence requirement under
8 U.S.C. § 1229b(a)(1)); Vang v. INS, 146 F.3d 1114,
1116-17 (9th Cir. 1998) (holding that imputation applies for
purposes of whether a minor has “firmly resettled” in another
country); Lepe-Guitron v. INS, 16 F.3d 1021, 1024 (9th Cir.
1994) (holding that a parent’s “lawful unrelinquished domicile” is imputed to “a child, [who] legally entered the United
States with his parents, was always legally within the country,

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was domiciled here, but acquired permanent resident status,
still as a minor, many years after his parents achieved it”);
Senica v. INS, 16 F.3d 1013, 1016 (9th Cir. 1994) (holding
that a parent’s knowledge or state of mind concerning a fraudulent application is imputed to the parent’s child with respect
to grounds for inadmissibility).1
[2] But we recently clarified that line of authority and limited our imputation rule to encompass only an intent, state of
mind, or legal status. Barrios v. Holder, 581 F.3d 849, 862-65
(9th Cir. 2009). In Barrios, we held that imputation does not
apply to the statutory requirement in the Nicaraguan Adjustment and Central American Relief Act (“NACARA”) that an
alien demonstrate a certain period of continuous “physical
presence.” Id. “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.’ ” Id. at 862 (quoting Cuevas-Gaspar, 430
F.3d at 1026). We explained:
[T]he definition 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. . . .
. . . [The petitioner] 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 [parent’s] physical presence.
1

The issue of imputation is not without controversy. See, e.g., MercadoZazueta, 580 F.3d at 1115-16 (Graber, J., concurring) (stating disagreement with this court’s rule in Cuevas-Gaspar); Escobar v. Holder, 567
F.3d 466, 481-82 (9th Cir. 2009) (Graber, J., concurring) (same); CuevasGaspar, 430 F.3d at 1031-32 (Fernandez, J., dissenting); Lepe-Guitron, 16
F.3d at 1027 (Rymer, J., dissenting).

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Id. at 863-64 (footnote omitted).
[3] Like the petitioner in Barrios, Petitioner here seeks to
impute her parent’s physical presence in the United States. In
Barrios, we rejected almost all of the same arguments now
advanced by Petitioner here. As Petitioner acknowledges, we
are bound by Barrios.
She also urges us to limit Barrios to the “physical presence” requirement in NACARA. She argues that the “physical
presence” requirement in 8 U.S.C. § 1229b(b) has a different
meaning. We are unpersuaded.
The two statutes are part of the same statutory immigration
scheme and, with the exception of the number of years
required, the statutes use identical text. Compare NACARA,
Pub. Law No. 105-100, § 203(b), 111 Stat. 2160, 2198 (1997)
(at issue in Barrios) (requiring that the alien “has been physically present in the United States for a continuous period of
not less than 7 years immediately preceding the date of such
application”), with 8 U.S.C. § 1229b(b)(1)(A) (at issue here)
(requiring that the alien “has been physically present in the
United States for a continuous period of not less than 10 years
immediately preceding the date of such application”). In these
circumstances, we presume that Congress intended the same
text to have the same meaning. See Cooper v. FAA, 622 F.3d
1016, 1032 (9th Cir. 2010) (holding that, where Congress uses
identical text in two statutes having similar purposes, we presume that Congress intended the same meaning). None of
Petitioner’s arguments overcomes that presumption.
Petition DENIED.