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On remand from the Supreme Court, Holder v. Martinez Gutierrez, 132 S. Ct. 2011 (2012), the Ninth Circuit was obliged to vacate its previous determination that an applicant for cancellation of removal under 8 U.S.C. § 1229b(a) could impute his mother's residence to establish the statutory requirement of 7 years of continuous residence.

The Ninth Circuit then reached the noncitizen's alternative argument that his conviction for maintaining a dwelling for keeping controlled substances in violation of 16 Delaware Code section 4755(a)(5) (2002) did not terminate his own period of continuous residence. He had argued it might qualify as a single offense of possession for his own use of 30 grams or less of marijuana, which would not make him deportable and thus not terminate his continuous residence. The court rejected that argument summarily, pointing to the indictment which alleged he maintained the dwelling for cocaine-related crimes and a marijuana distribution crime.


In a unanimous decision, the Supreme Court found the Board reasonably interpreted INA 240A(a) cancellation of removal to require that the respondent personally satisfy the requirements of 7 years of lawful residence and 5 years of permanent resident status. Since this was a reasonable interpretation of a statute that the Board is charged with administering, the Court overruled the Ninth Circuit's contrary interpretation--which imputed a parent's period of lawful residence or permanent resident status to his or her child. Cuevas-Gaspar v. Gonzales, 430 F. 3d 1013 (9th Cir. 2005) and Mercado-Zazueta v. Holder, 580 F. 3d 1102 (9th Cir. 2009) thus are no longer good law.


The Board held that, if the seven year period of continuous residence stops for 240A(a) cancellation of removal, it does not restart again based merely on a departure from and reentry to the U.S.  A key fact in this case, however, is that the conviction that stopped Nelson's period of continuous residence also made him inadmissible at the time of his reentry to the U.S.  There also was no claim that he obtained a waiver of that inadmissibility.  The Board reserved deciding whether the result would have been the same if he had been readmitted with a waiver.  The Board also attached some significance to the fact that the conviction was charged as a basis for removability (in addition to other grounds of removability), although it did not explain the exact relevance of this fact.

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