BLANCAS

Cite as 

 (BIA 2002)                                  Interim Decision #3477




               In re Eduardo BLANCAS-Lara, Respondent
                           File A43 038 518 - Otay Mesa
                                Decided June 10, 2002
                           U.S. Department of Justice
                     Executive Office for Immigration Review
                         Board of Immigration Appeals
  The period of an alien’s residence in the United States after admission as a nonimmigrant
may be considered in calculating the 7 years of continuous residence required to establish
eligibility for cancellation of removal under section 240A(a)(2) of the Immigration and
Nationality Act, 8 U.S.C. § 1229b(a)(2) (Supp. V 1999).

FOR RESPONDENT: Jonathan D. Montag, Esquire, San Diego, California

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Kimberly A. Jones,
Assistant District Counsel

BEFORE: Board Panel: GUENDELSBERGER, ROSENBERG, and PAULEY, Board
        Members.

PAULEY, Board Member:

   The Immigration and Naturalization Service appeals from the decision of
an Immigration Judge dated January 28, 1999, granting the respondent
cancellation of removal under section 240A(a) of the Immigration and
Nationality Act, 8 U.S.C. § 1229b(a) (Supp. V 1999). The appeal will be
dismissed.
   Section 240A(a) of the Act provides as follows:
       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 permanent 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.

   The sole issue on appeal is whether the respondent established that he “has
resided in the United States continuously for 7 years after having been
admitted in any status,” as required by section 240A(a)(2) of the Act. 1

1
   The Service concedes that the respondent is an alien lawfully admitted for permanent
residence for over 5 years and has not been convicted of an aggravated felony, as required by
                                                                              (continued...)

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Cite as 

 (BIA 2002)                                     Interim Decision #3477



   The respondent was first admitted to the United States in August 1986 with
a border crossing card. He adjusted his status to that of a lawful permanent
resident on August 5, 1991. The respondent’s period of continuous residence
under section 240A(a)(2) of the Act ended on April 1, 1998, when he was
served with a Notice to Appear (Form I-862). See section 240A(d)(1) of the
Act. At that point, the respondent had resided in the United States as a lawful
permanent resident for about 6 years and 8 months.
   The Immigration Judge concluded that the respondent could count time he
spent in the United States as a child before his admission as a lawful
permanent resident toward the accrual of 7 years of continuous residence
under section 240A(a)(2), because the lawful residence of his father, a citizen
and resident of the United States, could be imputed to him. In reaching her
conclusion, the Immigration Judge relied upon Lepe-Guitron v. INS, 

 (9th Cir. 1993), which stated that the domicile of a parent may
be imputed to a minor in determining the minor’s domicile for purposes of
assessing eligibility for a waiver under former section 212(c) of the Act,

(c) (Supp. V 1993). The Service argues that the Immigration
Judge’s reliance on this decision was misplaced, because the determination
of domicile for section 212(c) eligibility involves considerations that are
separate and distinct from those involved in determining continuous residence
under section 240A(a)(2) of the Act. 2
   We do not find it necessary to reach the question of imputed residence in
this case. We find, instead, that under the plain meaning of the statutory
language, the respondent’s period of residence after his admission as a
nonimmigrant in 1986, when he was approximately 5 years of age, may be
considered in calculating the period of continuous residence for purposes of
section 240A(a)(2). See INS v. Cardoza-Fonseca, 

 (1987)
(noting the assumption that the legislative purpose of a statute is expressed
by the ordinary meaning of the words used).
   We begin our analysis by examining the relevant language of section
240A(a)(2), “has resided in the United States continuously for 7 years after

1
    (...continued)
sections 240A(a)(1) and (3) of the Act. The Service also indicated in proceedings below that
it did not contest the Immigration Judge’s determination that the respondent should be granted
cancellation of removal in the exercise of discretion.
2
   As the Service noted on appeal, Lepe-Guitron v. INS, supra, addressed eligibility for relief
under former section 212(c) of the Act, which requires a period of lawful unrelinquished
“domicile.” The court’s rationale depended, in part, on its observation that “a child’s domicile
follows that of his or her parents . . . because children are, legally speaking, incapable of
forming the necessary intent to remain indefinitely in a particular place.” Id. at 1025; see also
Vang v. INS, 

 (9th Cir. 1998). By way of contrast, section
240A(a)(2), which is at issue here, requires a period of continuous residence, which requires
no proof of intent.

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Cite as 

 (BIA 2002)                                      Interim Decision #3477



having been admitted in any status.” Section 101(a)(33) of the Act, 

(a)(33) (2000), defines a “residence” as “the place of general abode,”
which is further defined as a person’s “principal, actual dwelling place in fact,
without regard to intent.” Section 101(a)(13) of the Act states that the term
“admitted” means “the lawful entry of the alien into the United States after
inspection and authorization by an immigration officer.”
   Although no specific definition of the word “status” is included in section
101 of the Act, it is generally defined in the legal context as a “[s]tanding;
state or condition,” and as “[t]he legal relation of [an] individual to [the] rest
of the community.” Black’s Law Dictionary 1264 (5th ed. 1979). “Status”
is a term of art, which is used in the immigration laws in a manner consistent
with the common legal definition. It denotes someone who possesses a
certain legal standing, e.g., classification as an immigrant or nonimmigrant.
The use of the word “any” to modify the word “status” indicates that
Congress intended section 240A(a)(2) to include admissions of
nonimmigrants as well as immigrants. Thus, the plain language of section
240A(a)(2) encompasses nonimmigrants admitted to the United States who
thereafter reside in the United States for at least 7 years.
   The record indicates that the respondent was admitted to the United States
as the holder of a border crossing card. At the time of his admission in 1986,
the holder of a border crossing card was classified as a nonimmigrant. See

, 235.1(f)(iii), (g) (1986); 

 (1986). 3 The
Service contended at the hearing before the Immigration Judge that a
reasonable interpretation of the words “admitted in any status” in section
240A(a)(2) of the Act means admitted for lawful residence in any
“immigrant” status, because to apply the literal meaning of the statute would
contravene the intent of Congress to discourage the unlawful residence of
aliens in the United States.
   We are unpersuaded by the Service’s argument for several reasons. We
agree with the respondent that acceptance of the Service’s interpretation
would essentially rewrite the statute in a way that would render section
240A(a)(2) of the Act surplusage, because an alien would have to be a lawful
permanent resident for 7 years, rather than just 5 years. See Freytag v.
Commissioner, 

 (1991) (stating that there is a deep
reluctance to interpret a statutory provision so as to render superfluous other
provisions in the same enactment). The Service refers to the respondent’s

3
   The Service argued before the Immigration Judge that the holder of a border crossing card
is not “admitted” to the United States and equated the status of such an alien to that of an alien
crewman. Section 101(a)(13)(B) of the Act specifically provides that an alien crewman shall
not be considered to have been admitted, but it does not mention aliens who enter with a
border crossing card. The regulations in effect at the time of the respondent’s entry indicate
that aliens who entered with border crossing cards were (and still are) considered
nonimmigrants. 

, 235.1(f)(iii), (g).

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 (BIA 2002)                              Interim Decision #3477



apparent breach of the conditions of his nonimmigrant status and asserts that
Congress intended cancellation of removal under section 240A(a) to be for
aliens who have not fallen out of status during the 7 years of continuous
residence.4 However, Congress could easily have written section 240A(a)(2)
to include maintenance of status as a prerequisite for relief, but it chose only
to require 7 years of continuous residence after admission to the United
States.
   Moreover, the Service has not convinced us that accepting the plain
meaning of the statute would lead to an absurd result. As noted by the
respondent, in many instances Congress has provided relief for aliens who fell
out of status at some point during their residence in the United States.
   We acknowledge that an alien, like the respondent, who was admitted as
a nonimmigrant for a temporary period could not use the date of admission
as the start of the required period of domicile to establish eligibility for relief
under former section 212(c) of the Act. Cf. Melian v. INS, 

 (11th Cir. 1993); Matter of Ponce De Leon, 

(BIA 1996; A.G., BIA 1997). As noted by the Service, however, section
212(c) required the alien to establish domicile, whereas section 240A(a)
requires only residence. Therefore, although the date when the alien could
form the intent to permanently reside in the United States was crucial in the
section 212(c) analysis, see Melian v. INS, supra, it is not relevant for
cancellation of removal under section 240A(a)(2).
   The legislative history of section 240A(a) of the Act indicates that it was
meant to “replace and modify” the section 212(c) waiver. This sparse
language does not clearly override the plain language of section 240A(a)(2)
that time in residence in the United States after admission in any status may
be applied toward the 7 years of continuous residence required for
cancellation of removal. See H.R. Conf. Rep. 104-828, at 213 (1996), 

; INS v. 

 at 432 n.12 (“[W]e look to the
legislative history to determine only whether there is ‘clearly expressed
legislative intention’ contrary to [the] language [of the statute].” (quoting
Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 

(1980))).
   We find that the respondent established that, at the time of his application
for relief, he had resided in the United States continuously for 7 years after
having been admitted as a nonimmigrant. Accordingly, we concur with the
Immigration Judge’s decision and will dismiss the appeal.
   ORDER: The appeal of the Immigration and Naturalization Service is
dismissed.


4
  The respondent remained beyond the 72 hours that a Mexican national holding a border
crossing card was authorized to stay in the United States. See 

(f)(iii).

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