Cuevas-Gaspar v. Gonzales ( 2005 )

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
15814 CUEVAS-GASPAR v. GONZALES
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
CUEVAS-GASPAR v. GONZALES 15815
Cuevas-Gaspar is removable. Cuevas-Gaspar was convicted
for being an accomplice to residential burglary under Wash-
ington law. Cuevas-Gaspar asserts that the BIA erred in con-
cluding 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 unemanci-
pated 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 con-
tinuously 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 pro-
ceedings.
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 Wash-
ington 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
1
The 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.
15816 CUEVAS-GASPAR v. GONZALES
[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 resi-
dence where no one was home.” He was sentenced to a three-
month 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 hav-
ing 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 per-
manent resident in December 1997, and that he was convicted
of being an accomplice to residential burglary under Wash-
ington 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 convic-
tion 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 Cuevas-
Gaspar be removed to Mexico.
2
The 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).
CUEVAS-GASPAR v. GONZALES 15817
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 con-
tinuous 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 bur-
glaries of this sort constitute crimes involving moral turpi-
tude. . . . The respondent’s conviction as an accomplice to the
underlying crime also constitutes a crime involving moral tur-
pitude. Accordingly, we affirm the Immigration Judge’s rul-
ing that the respondent is removable as charged.” The BIA
then reasoned that, because Cuevas-Gaspar was not “admit-
ted” to the United States until December 4, 1997, Cuevas-
Gaspar 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 categori-
15818 CUEVAS-GASPAR v. GONZALES
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 categori-
cal approach to determine whether petitioner’s state convic-
tion constituted a crime involving moral turpitude).
A. Categorical Approach
[1] The categorical approach requires us to “make a cate-
gorical comparison of the elements of the statute of convic-
tion 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.” Huerta-
Guevara v. Ashcroft, 321 F.3d 883, 887 (9th Cir. 2003). We
look “only to the fact of conviction and the statutory defini-
tion of the prior offense,” and not to the particular facts under-
lying 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 Rashta-
badi 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 turpi-
tude even though they have no element of fraud.” Rodriguez-
Herrera 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 statu-
torily prohibited, rather than inherently wrong, the act gener-
ally will not involve moral turpitude. Beltran-Tirado v. INS,
213 F.3d 1179, 1184 (9th Cir. 2000) (noting difference
CUEVAS-GASPAR v. GONZALES 15819
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 Castillo-
Rivera, 244 F.3d at 1022 (explaining the categorical
approach). Similarly, the BIA has concluded, in cases predat-
ing 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
3
The 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 involv-
ing 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.
15820 CUEVAS-GASPAR v. GONZALES
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 exam-
ple, 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 accompa-
nies 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 per-
sons 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 residen-
tial 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
CUEVAS-GASPAR v. GONZALES 15821
(i) solicits, commands, encourages, or
requests such other person to com-
mit it; or
(ii) aids or agrees to aid such other per-
son 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 com-
mit 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 bed-
room door without her permission, sufficient evidence sup-
ported 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 particu-
lar 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 Washing-
ton law, an intent to commit any crime satisfies the accompa-
nying 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
15822 CUEVAS-GASPAR v. GONZALES
in an amount exceeding $250. See Wash. Rev. Code
§ 9A.48.080 (setting forth the elements of the crime of mali-
cious 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 Rodriguez-
Herrera 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 indict-
ment, 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) (inter-
CUEVAS-GASPAR v. GONZALES 15823
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 con-
viction’ 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 neces-
sarily 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 con-
firmed 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 convic-
tion 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 tur-
pitude. 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 resi-
15824 CUEVAS-GASPAR v. GONZALES
dence, his conviction constitutes a crime involving moral tur-
pitude 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 bur-
glary 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 com-
mitted 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 fol-
lows 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 now-
repealed INA § 212(c). Lepe-Guitron, 16 F.3d at 1025-26.
Cuevas-Gaspar argues that, similar to the petitioner in Lepe-
4
Cuevas-Gaspar does not argue that his conviction as an accomplice
affects the determination of whether his conviction is for a crime involv-
ing 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 admit-
ted 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).
CUEVAS-GASPAR v. GONZALES 15825
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 Lepe-
Guitron 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 hav-
ing 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 applica-
tion 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)).
15826 CUEVAS-GASPAR v. GONZALES
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 per-
manent 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 pur-
poses of satisfying the requirements of subsections (a)(1) and
(a)(2). We therefore proceed to the second step of the Chev-
ron test, which requires us to determine whether the BIA’s
interpretation of the statute is based on a reasonable construc-
tion of the statute. Chevron, 467 U.S. at 844.
B. Statutory Construction
The BIA rejected Cuevas-Gaspar’s argument that our hold-
ing in Lepe-Guitron, which applied to relief under former
§ 212(c) of the INA, should apply to cancellation of removal
CUEVAS-GASPAR v. GONZALES 15827
under INA § 240A(a), 8 U.S.C. § 1229b(a). The BIA con-
cluded that, unlike in Lepe-Guitron, a parent’s period of resi-
dence 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 summariz-
ing our holding in that case.
1. Lepe-Guitron
[8] We note that neither the BIA nor any of our sister cir-
cuits 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 nec-
essary 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 now-
repealed 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
15828 CUEVAS-GASPAR v. GONZALES
processing error, Lepe-Guitron did not attain permanent resi-
dent 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 dis-
cretion 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 domi-
cile 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 resid-
ing 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 par-
CUEVAS-GASPAR v. GONZALES 15829
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 pri-
ority 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 foreign-
resident child of a permanent resident alien is given the same
priority date and preference category as that of his or her par-
ents.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.7 Id. 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
6
Although 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.
7
The 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.
15830 CUEVAS-GASPAR v. GONZALES
lawfully admitted for permanent residence and therefore eligi-
ble for § 212(c) relief. Id. at 1026.
2. Statutory Provision in Context
We turn now to an application of the tools of statutory con-
struction in order to determine whether the BIA’s interpreta-
tion 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 coher-
ent 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 superflu-
ous.’ ” 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 par-
ent’s unemancipated minor child in many areas of immigra-
tion 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 ref-
ugee 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 ‘unre-
markable’ common law concept ‘that a child’s domicile fol-
CUEVAS-GASPAR v. GONZALES 15831
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 par-
ent’s minor children with respect to grounds for inadmissibil-
ity. 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 mate-
rial 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 chil-
dren 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 dis-
covered the ineligibility by the exercise of reasonable dili-
gence. 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
15832 CUEVAS-GASPAR v. GONZALES
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 par-
ent’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 sta-
tus 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. Like-
wise, in Winkens, the BIA reasoned that the parents’ abandon-
ment of their lawful permanent resident status was imputed to
their minor child “who was subject to their custody and con-
trol.” Winkens, 15 I. & N. Dec. at 452. The BIA further rea-
soned 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 com-
monly 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 con-
cluded 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 unemanci-
pated minor child because unlike domicile, which depends on
intent or capacity, “admission” does not depend on either
CUEVAS-GASPAR v. GONZALES 15833
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 impu-
tation of a parent’s status to unemancipated minor children.
First, the BIA’s refusal to impute a parent’s permanent resi-
dent status here conflicts with the BIA’s consistent willing-
ness 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 Lepe-
Guitron and of the definition of “lawful unrelinquished domi-
cile” 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 con-
viction 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 resi-
dence, 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.8 See Lepe-Guitron, 16 F.3d at 1022-
8
Adjustment of status to that of permanent resident constitutes lawful
admission to the United States. See 8 U.S.C. § 1255(a) (stating that the
15834 CUEVAS-GASPAR v. GONZALES
24. Thus, in holding that a parent’s “lawful unrelinquished
domicile” is imputed to the parent’s minor children, we neces-
sarily held that the parent’s admission for permanent resi-
dence 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 Lepe-
Guitron — 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 there-
fore 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 interpreta-
tion 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 expla-
nation).
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 can-
not 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 law-
fully 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).
CUEVAS-GASPAR v. GONZALES 15835
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 any-
one previously ‘convicted of any aggravated felony’ ”). Sub-
section (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 sta-
tus 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 deport-
able 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 domi-
cile 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
15836 CUEVAS-GASPAR v. GONZALES
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 per-
manent 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 admis-
sion 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, how-
ever, we modified our position to allow aliens granted tempo-
rary 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 ini-
CUEVAS-GASPAR v. GONZALES 15837
tial period of temporary resident status — could not count the
years spent in temporary status toward the seven-year domi-
cile 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 Leon-
Ruiz, 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 “unrelin-
quished 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 interpre-
tations 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 inspec-
tion 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 non-
15838 CUEVAS-GASPAR v. GONZALES
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 bar-
ring 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 Con-
gress’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; Rand-
hawa, 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 gen-
eral 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 constru-
ing 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’ adop-
tion of a two-step residency requirement in place of the for-
mer one-step “unrelinquished lawful domicile” requirement
clearly was intended as a generous provision — allowing
CUEVAS-GASPAR v. GONZALES 15839
legal permanent residents to count two years of residence in
the United States in non-permanent status toward the require-
ment — 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 congres-
sional 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) (dis-
cussing 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 une-
mancipated 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.
9
The 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. Legom-
sky, Immigration and Refugee Law and Policy 465 (1997).
15840 CUEVAS-GASPAR v. GONZALES
FERNANDEZ, Circuit Judge, dissenting:
I cannot agree with the proposition that burglary of a dwell-
ing is not necessarily a crime of moral turpitude. Washing-
ton’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
1
The illegal entry of a vehicle with the intent to commit a felony therein.
Cal. Penal Code § 459.
CUEVAS-GASPAR v. GONZALES 15841
case involving burglary of a vending machine, a boat, a com-
mercial 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 ille-
gal 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 con-
frontation 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 categori-
cal 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 reason-
ably 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.
15842 CUEVAS-GASPAR v. GONZALES
a categorically depraved act. Thus, the majority improperly
encumbers the Immigration Judges with the task of determin-
ing 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 can-
cellation 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 condi-
tions 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 contin-
uous 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 con-
tinuous 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).
CUEVAS-GASPAR v. GONZALES 15843
domicile” to a minor child, this panel should impute a moth-
er’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 main-
tained “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 deter-
mined 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 Castillo-
Felix 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 read-
ily 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.
15844 CUEVAS-GASPAR v. GONZALES
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 admit-
ted. 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 cancel-
lation 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.