Ramos v. Holder (9th Cir.)

Twelve years after it was enacted, the Nicaraguan Adjustment and Central American Relief Act (“NACARA”) is one of components of immigration law which is beginning to lose its usefulness with the passage of time, mostly because as each year passes fewer and fewer people qualify for its benefits.   This is not to say it is irrelevant, because it still offers a great deal of relief to the great number of people who are eligible for NACARA benefits, but it has little to offer for newer immigrants.  NACARA’s requirement that the applicant must have been physically present in the United States for at least seven years prior to applying for benefits is a severe barrier for most people.  The Ramos case has made the physical presence requirement even more burdensome, especially for children of NACARA beneficiaries.    

The Ninth Circuit found that minor children of NACARA applicants must personally meet the NACARA requirements, specifically the physical presence requirement, and not be able to rely on their parents’ status.  Ramos, the petitioner in this case, entered the U.S. from his home country of Guatemala in 2001.  The government immediately placed him in removal proceedings.  Among other forms of relief, he applied for NACARA benefits.  Ramos’ father had previously been granted permanent resident status pursuant to NACARA.  The immigration judge denied his application, finding that Ramos (1) did not meet the seven-year physical presence requirements for NACARA, and (2) his father’s physical presence cannot be imputed to him to satisfy this requirement.  On appeal, the Ninth Circuit agreed with the immigration judge, despite agreeing that Ramos met every other requirement.

Those who follow Ninth Circuit cases may be puzzled with this ruling because it seems inconsistent with its other rulings in similar cases.  For instance, in the Lepe-Guitron v. INS case, the court found that children of immigrants derive “domicile” status through their parents.  In the Cuevas-Gaspar v. Gonzales case, the court found that a parent’s “residency” may be imputed to a minor child in order for the child to qualify for the seven-year continuous residency requirement  for cancellation of removal.  In the Vang v. INS case, the court determined that a child of a refugee or asylee is generally entitled to the same legal status as her parent.  And recently in the Escobar v. Holder case, the court reaffirmed the holding of Cuevas-Gaspar and found that for purposes of satisfying the five years of lawful permanent residence required cancellation of removal, a parent’s status as a lawful permanent resident is imputed to the unemancipated minor children residing with that parent.

What’s the difference between the Ramos case, where he is claiming derivative status of his father’s physical presence, and the other similar cases where the applicant claimed derivative status of their parents’ residency?  According to the Ninth Circuit, the difference is between the state of mind and state of being.  Residency is a state of mind, or intent, because one can be a resident of a place without actually living in it.  For instance, a person could be a “resident” of one state while living in another if that person can establish that he or she does intend to relinquish or abandon his or her residence in the home state.  Out of state university students are the classic example of this concept.  On the other hand, physical presence is just that—being in a place.  You cannot intend to be somewhere.  Either you are, or you’re not.  Along these lines, the court found that it is acceptable to impute a parent’s residency to a minor child because it is legally impossible for such child to form an independent intent from his or her parents.  A child cannot intend to reside in another state because minor children do not have the means to live apart from their parents.  Therefore, a minor child’s state of mind has no consequence.  Physical presence is another matter because a child may indeed be physically separated from his or parent.   Subjective intent is not at issue because physical presence is purely objective, a corporeal matter, so to speak.  A parent’s physical presence cannot be imputed to a child for this reason.  To illustrate this point, the court noted that Ramos, prior to his coming to the U.S., had lived in Guatemala apart from his father (who lived in the U.S.) for almost ten years.

For all the above reasons, Ramos did not qualify for NACARA benefits because he could not meet the seven-year physical presence requirement.   Minor children must independently establish eligibility for NACARA benefits, even if their parents qualify.