'Mommy, Where is Home?': Imputing Parental Immigration Status and Residency for Undocumented Immigrant Children

Abstract:     
Carlos was among the many undocumented children in the United States. A native and citizen of Mexico, he entered the United States (U.S.) illegally when he was five years old. Two years later, his father was granted legal permanent resident (LPR) status, but Carlos did not get LPR status until he was 19 years old. Two years after becoming an LPR, Carlos was arrested for smuggling, placed into removal proceedings, and he faced deportation back to Mexico. Unfortunately for Carlos, he did not satisfy the requirements to obtain Cancellation of Removal - a common form of discretionary relief available in removal proceedings.

For LPR Cancellation applicants, the applicant must have five years of residence as an LPR, have seven years’ physical presence after admission to any status, and not have been convicted of an Aggravated Felony. When Carlos applied for Cancellation, he was faced with the problem that although he had been physically present in the United States and living with his parents for 16 of his 21 years, he had not had LPR status for five years, nor had he accrued seven years of presence post-admission. The government argued that the time requirements for Cancellation must be met using only the applicant’s residence and admission. Carlos argued that as an unemancipated minor living with his parents, his father’s dates of admission and grant of LPR status should be imputed to him, which would render him eligible for Cancellation. Along with a case involving similar issues, Carlos’ case was heard in the U.S. Supreme Court in the October 2011 Term.

This article discusses whether the parent’s time in residence and date of admission (immigration status) should be imputed to an unemancipated minor; the two recently decided U.S. Supreme Court cases addressing this issue; the policy implications and impact of an imputation rule on undocumented children; and the impetus and potential vehicles for changing the status quo.

Keywords: immigration, removal, undocumented children, residence

Accepted Paper Series