BIA: Residence in U.S. Following Admission as Nonimmigrant Counts Towards 7-Year "Continuous Residence"...

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

BIA: RESIDENCE IN U.S. FOLLOWING ADMISSION AS NONIMMIGRANT COUNTS TOWARDS 7-YEAR "CONTINUOUS RESIDENCE" REQUIREMENT FOR LPR CANCELLATION (MATTER OF BLANCAS-LARA)
Immigrants' Rights Update, Web Edition, July 15, 2002

The Board of Immigration Appeals has issued a precedent decision finding that applicants for cancellation of removal can have time spent in the United States following admission as a nonimmigrant apply to the "continuous residence" requirement. Under section 240A(a) of the Immigration and Nationality Act, cancellation applicants must show that they have accumulated seven years of continuous residence in the U.S. In addition to seven years of continuous residence, applicants must have been in lawful permanent resident status for at least five years.

The respondent in this case, a Mr. Blancas-Lara, is a Mexican national who entered the U.S. on a border crossing card in 1986, when he was five years old. In 1991 he adjusted to LPR status. In 1998 he was served with a Notice to Appear (NTA), commencing removal proceedings. At the time he was served with the NTA, ending the accrual of continuous residence for cancellation purposes, he had been an LPR for about six years and eight months.

At his hearing, Blancas-Lara applied for cancellation of removal. The immigration judge found that he satisfied the seven-year continuous residence requirement by counting the time Blancas-Lara lived in the U.S. before obtaining LPR status. The IJ justified this finding by reasoning that Blancas-Lara was at that time a minor living with his U.S. citizen father, and the U.S. residence of his father could be imputed to Blancas-Lara. The IJ concluded that Blancas-Lara was eligible for cancellation and found that he merited the relief in the exercise of discretion. The Immigration and Naturalization Service appealed this decision, raising only the claim that the IJ erred in finding that Blancas-Lara satisfied the continuous residence requirement. The INS did not otherwise contest Blancas-Lara's eligibility for cancellation or the grant of relief in the exercise of discretion.

On appeal, the BIA found that the plain language of the statute supports counting time spent in the U.S. following admission as a nonimmigrant towards the continuous residence requirement. INA section 240A(a)(2) requires applicants for cancellation to show seven years' continuous residence "after having been admitted in any status." The reference to "any status," the BIA held, must include nonimmigrant as well as immigrant status. The BIA also noted that under INA section 101(a)(33) "residence" is defined as a person's "principal, actual dwelling place in fact, without regard to intent."

The BIA rejected the INS's contention that Congress could not have intended to count time following admission as a nonimmigrant toward continuous residence, because that would encourage nonimmigrants to violate the terms of their status and establish residence in the U.S. The BIA noted that had Congress intended to require maintenance of status as a condition for cancellation, it could easily have made the requirement explicit in the statute.

Because the BIA concluded that Blancas-Lara's residence in the U.S. following his admission on a border crossing card met the seven-year requirement, it did not address the issue of whether the residence of his father could be imputed to him.

Matter of Blancas-Lara, 23 I. & N. Dec. 458, Int. Dec. 3477 (BIA Jun. 10, 2002).