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The Application of the Residency Requirement has reached the U.S. Supreme Court

The Case of Carlos Martinez Gutierrez, a young man who got caught smuggling three Mexican children into California, has reached the nation’s highest appellate court. The U.S. Supreme court has agreed to hear Gutierrez’s case, which raises questions potentially crucial for other children of illegal immigrants. If Gutierrez were to win, some immigrants may find it easier to avoid being deported and stay in the United States. “The case is significant,” said his appellate attorney Stephen Kinnaird, adding “you can have possible breakups of families in certain circumstances.” Even though Gutierrez’s alleged attempt at smuggling undocumented citizens through the San Ysidro port of entry in December 2005 does not, by itself, concern the court, his subsequent efforts to avoid being deported from the country do matter a great deal however. An immigration judge agreed with Gutierrez who is a legal permanent resident finding that he had lived legally in the U.S. long enough to deserve another chance after his 2005 arrest. The judge, later supported by 9 th Circuit Court of Appeals based in San Francisco, rejected the Department of Homeland Security’s efforts to remove Mr. Gutierrez. Curiously enough, in calculating Gutierrez’s legal residency the immigration judge and the 9th Circuit included the years he spent with his family before he gained legal status on his own. The Obama administration disagreed with this saying it was too generous and that only the time since he gained independent legal status should count. This method of calculation would be particularly felt in California, Washington, Idaho and other Western states that fall within the 9 th Circuit since they will have to abide by what has now become case law. As a result, this will surely affect future applications for “cancellation of removal” otherwise referred to as a stay from deportation. This new law permits a judge to cancel removal proceedings and let an immigrant stay in the United States if, among other conditions, the immigrant has been “lawfully admitted for permanent residence for no less than five years.” Gutierrez’s family entered the United States illegally in 1988 when he was 5 years old. In 1991, his father attained legal U.S. residence status and the family eventually ended up living in the Bay Area where Gutierrez attended high school near San Jose. In October 2003, Gutierrez attained legal U.S. residency at age 19 and two years later, with his father disabled and his mother unemployed, he agreed to smuggle several minors into the United States in exchange for $1,500. In spite of committing this crime, a judge ruled that Gutierrez could stay in the country since he met the legal residency requirement. However, the Obama administration counters that decision by arguing that Gutierrez only began his legal residency in this country in 2003 as “the actions and status of others, including his alien’s parents, are irrelevant” in counting eligibility. Without a shadow of doubt, the decision made by the U.S. Supreme court will have far-reaching consequences that will affect immigration law nation-wide.

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