BIA Holds That In Removal Proceedings Arising Within The Jurisdiction Of The Fifth And Ninth Circuits, One Who Was “Waved Through” A Port Of Entry Has Established An Admission “In Any Status” Within The Meaning Of INA §240A(a)(2). Tula-Rubio v. Lynch, 787 F.3d288 (5th Cir. 2015) And Saldivar v. Sessions, 877 F.3d 812 (9th Cir. 2017) Followed In Those Jurisdictions Only. In Proceedings In All Other Circuits, To Establish Continuous Residence In The U.S. For 7 Years, One Must Prove That He Or She Possessed Some Form Of Lawful Immigration Status At Admission.

On January 29, 2018, the Board of Immigration Appeals (BIA or Board) held, in a disputed 2-1 decision, that it would recognize “wave through” entries as evidence of an admission –as per Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010) – “in any status” for purposes of proving eligibility for cancellation of removal proceedings under INA §240A(a)(2), i.e., meeting the requirement that an applicant “has resided in the United States continuously for 7 years after having been admitted in any status”, only in cases falling within the U.S. Courts of Appeals for the Fifth and Ninth Circuits.  In proceedings outside these two courts, held the opinion, one must prove that he or she had some type of lawful immigration status at admission to establish the necessary 7 years of continuous residence after admission “in any status,” despite a vociferous concurring and dissenting opinion by Board Member Pawley to the contrary.

The respondent, a Mexican citizen, entered the U.S. in October 1991, adjusted status in April 2003, and was served with a Notice to Appear (NTA) in January 2010 alleging removability under INA §212(a)(6)(E)(i) for smuggling or attempting to smuggle another person into the country.  She applied for cancellation under INA §240A(a); the Immigration Judge (IJ) pretermitted the application on the ground she did not establish continuous residence in the U.S. for 7 years after having been admitted in any status. She claimed a “wave through” entry in 1998, relying on Matter of Quilantan for the proposition that this entry constitutes an admission in any status and that she therefore began to accrue continuous residence under INA §240A(a)(2) after that date.  The IJ disagreed, holding that Quilantan only applies to applications for adjustment of status (AOS), so that her 1998 entry did not equate to an “admission” as contemplated by the cancellation statute.  He further held that she began accruing residence when she adjusted in 2003 and that it was terminated by service of the NTA in January 2010, 3 months short of 7 years.

In initiating its analysis, the BIA first cited to Matter of Quilantan, noting that under that precedent one who enters after having been “waved through” at a port of entry has been “admitted” for purpose of an INA §245(a) AOS application.  Overruling the IJ, the Board agreed that Quilantan governs “admissions” for purposes of §240A(a)(2), finding that respondent had, in fact, been “admitted” under §240A(a)(2).  

The one remaining issue, cotinued the opinion, was whether a “wave through” entry qualifies as an admission “in any status”under INA §240A(a)(2).  Citing to Tula-Rubio v. Lynch, 787 F.3d288 (5th Cir. 2015), respondent argued that the term “status” includes unlawful status and the word “any” should be read broadly to include all who have been admitted.  After oral argument in this case, noted the BIA, the Ninth Circuit, in whose jurisdiction it arises, agreed with Tula-Rubio v. Lynch in Saldivar v. Sessions, 877 F.3d 812 (9th Cir. 2017).  DHS contended that “admitted in any status” requires that one prove not only admission, but “admission attained by means of some lawful status”.

Although both parties argued that §240(a)(2) is unambiguous on the question of whether a “wave through” constitutes admission in any status, the BIA held that it is ambiguous in this regard.  As such, the Board noted that the fact that Congress included the phrase “admitted in any status” in 240A(a)(2) while §245(a) only requires that one be “inspected and admitted”, making no mention of “status”, suggests that it intended to give the statutes different meanings.  Therefore, reading both laws to require only a procedurally regular “admission” would render the phrase “in any status” meaningless; if Congress had intended §240A(a)(2) to only require inspection and admission, “it would have used the same language as section 245(a).” The BIA thus concluded that Congress was signaling that 240A(a)(2) requires something more than a procedurally regular “admission”.

The opinion next analyzed §240A(a)(2)’s predecessor statute, INA §212(c), to garner insight into congressional intent, finding that under all former interpretations of that section relief was only afforded to those who possessed a lawful status at entry.  Additionally, noted the Board, the legislative history of IIRIRA (1996) indicates that Congress intended to limit §240A(a)(2) eligibility to those who had been lawfully admitted, an interpretation confirmed at the time by “Government officials” within the former INS.  The BIA thus held that the phrase “admitted in any status” requires that one have possessed “some form of lawful status at the time of admission”, which prevents possible abuse of this type of relief; respondent’s argument in this regard, stated the decision, would essentially relieve an applicant “of the statutory burden of establishing that he or she has satisfied all the eligibility requirements for cancellation of removal” under §240A(a)(2).

The Board also expressly disagreed with the holding of the Fifth and Ninth Circuits that one can be admitted in an unlawful status, concluding that interpreting “admitted in any status” to require that one be admitted in some form of lawful immigration status does not create the same inconsistencies with other statutory provisions, as noted in Quilantan, because §240A(a)(2)’s language is different from that of §245(a).  It is the view of these two circuits, stated the BIA, that, has created the statutory conflicts or inconsistencies.  The Board further disputed the Fifth and Ninth Circuits‘ holding that the use of “lawfully admitted” in 240(a)(2) but not in 245(a) indicates congressional intent that the latter applies to those admitted in an unlawful status; it merely clarifies that §240A(a)(2) requires than an applicant make a physical admission at a port of entry, but not that he or she obtained the status of “an alien lawfully admitted for permanent residence” at that admission.  Thus, the Board held, it will only adhere to Tula-Rubio and Saldivar in cases arising in those circuits.  Applicants in all other circuits “must show that they possessed some form of lawful immigration status at the time of admission” to establish they were “admitted in any status” under §240A(a)(2).  As a result, because the Ninth Circuit has concluded that a “wave through” entry qualifies as an “admission in any status”, the BIA remanded the record to the IJ for further consideration of respondent’s cancellation eligibility and for entry of a new decision.

In a fairly lengthy and cogently-argued concurring and dissenting opinion, Board Member Pauley concluded that the Fifth and Ninth Circuits had “arrived at the correct result”, agreeing with the majority that a “wave through” admission must result in some lawful status in that no immigration officer intends to grant entry to one he or she believes has no lawful status.  The question for Board Member Pauley was, if the respondent was waved through, whether she was “admitted in any status” for purposes of cancellation eligibility.  Dissenting from the opinion’s holding that in all circuits but the Fifth and Ninth, applicants must prove some lawful status at admission, he termed the majority’s finding “dicta, depending on how one regards it” and stated that it is based on the mistaken premise that such lawful status must be later identified.  Further, the “generous nature” of §240A(a)(2)’s requirements make it unlikely that Congress intended to require the identification of a lawful status at entry; the holding, he also noted, is inconsistent with Quilantan’s primary finding that a “wave through” is an admission under INA §101(a)(13)(A).  Matter of Castillo Angulo, 27 I&N Dec. 194 (BIA 2016).

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