Photo Credit to the United States Supreme Court
WASHINGTON – The Supreme Court heard arguments Wednesday in a case that will determine if a parent’s years spent as a U.S. resident can be transferred to an adult child facing deportation to satisfy residency requirements.
The consolidated cases of Holder v. Gutierrez and Holder v. Sawyers challenge the intent of the Immigration and Nationality Act, which focuses on immigrants’ family relationships with legal U.S. residents.
The importance, according to a summary written by a University of Notre Dame law school professor, rests on whether broader aims of U.S. immigration law — or the actual words in the law — will dominate in interpreting the statute in the future.
How many people ultimately will be touched by the outcome of the case is hard to predict, said Stephen Kinnaird, lawyer for Carlos Martinez Gutierrez.
Jim Tom Haynes, a Washington-based immigration lawyer, said the case is not of major importance because the issue rarely occurs.
The section of the United States Code at issue allows the attorney general to cancel the deportation of non-citizens if they meet three conditions: a legal permanent resident for five years, living in the United States continuously for seven years since arriving, and never convicted of an aggravated felony.
The most important word to the Supreme Court cases – “imputation” – is not in print. It means the transfer of years of residency from one person to another.
The government argued there is no evidence the statute is meant to involve anyone but the immigrant himself.
But attorneys for Gutierrez and Sawyers said that Congress used the word “residence” instead of “domicile” assuming an extension from parents to the children they brought to the U.S. as minors. This was allowed before passage of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act.
“You take a statute that doesn’t say anything about imputation one way or the other, and you say that statute can still be unambiguous?” Justice Elena Kagan asked Assistant to the Solicitor General Leondra Kruger. “Add to that statute a history and a tradition and a practice in immigration law of imputation of various kinds…are you at least in a sphere in which there is ambiguity?”
Justice Stephen Breyer followed up with a hypothetical situation where two parents arrive in New York from China with a six-month old baby: “I just want to know what is it that prevents you from taking the child and shipping him off to China if we don’t impute?” Kruger stalled, then referred to “certain provisions of law” that would admit the child before the justice said her answer had to be imputation or nothing.
The court erupted in laughter when Justice Ruth Bader Ginsburg piped up to suggest a baby that age would probably have been born here if both parents were permanent residents, and Breyer shot back, “No. No. That is not my hypothetical.”
Gutierrez illegally entered the U.S. with his parents when he was five. His father became a legal permanent resident, and the younger Gutierrez followed suit, but too late. Border patrol agents stopped him two years later, when he tried to cross the Mexico border with illegal aliens. He did not have enough years in as a legal resident to avoid deportation. His father did, however, – and that’s the fact driving the case before the high court. If his dad’s years count for him, the argument goes, Gutierrez meets residency requirements.
Sawyers, too, committed a crime before he had enough years to meet residency requirements that could save him deportation, and his mother brought him to the U.S. as a minor and became a legal permanent resident earlier.
Attorneys for Gutierrez and Sawyers pushed the points that allowing a parent’s years of residency to apply toward a child preserves family unity and recognizes that children present a special case because they had no control over when they immigrated.
If the Supreme Court reverses the 9th U.S. Circuit Court of Appeals decision, aliens facing deportation will be able to put their parents’ years as legal permanent residents and years as continuous residents toward their own residency requirements.
“I think it [the decision] is most likely to hinge on whether the court thinks Congress assumed imputation would still be allowed,” said Ben Winograd, legal fellow for the American Immigration Council, who attended the oral arguments.
