FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIAN OROZCO, 

Petitioner, No. 06-75021

v. Agency No. 

M A77-981-235 ICHAEL B. MUKASEY,* Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

November 7, 2007—Pasadena, California

Filed March 25, 2008

Before: Kim McLane Wardlaw, Carlos T. Bea, and

N. Randy Smith, Circuit Judges.

Opinion by Judge N. R. Smith

*Michael B. Mukasey is substituted for his predecessor, Alberto R.

Gonzales, as Attorney General of the United States, pursuant to Fed. R.

App. P. 43(c)(2). 

2991
COUNSEL

Jaime Jasso, Immigration Appealworks, Westlake Village,

California, for the petitioner-appellant. 

Allen W. Hausman, Senior Litigation Counsel, Office of

Immigration Litigation, United States Department of Justice,

for the respondent-appellee. 

OPINION

N.R. SMITH, Circuit Judge: 

We hold that an alien, who obtains entry into the United

States by fraudulent means, is statutorily ineligible for adjustment of status under 8 U.S.C. § 1255(a). Because petitioner

Brian Orozco (“Orozco”) obtained entry into the United

States by presenting identification that was not his own to an

immigration agent, we hold that the Board of Immigration

Appeals (“BIA”) and the immigration judge (“IJ”) properly

denied Orozco’s application for adjustment of status under

§ 1255(a). Accordingly, we deny Orozco’s petition for

review.

I. Factual and Procedural Background

Orozco entered the United States on January 11, 1996, at

the San Ysidro, California checkpoint. Orozco did not possess

OROZCO v. MUKASEY 2993
valid identification that would have allowed him legally to

enter the United States, nor was he eligible for any such valid

entry document at the time of his entry. Orozco instead

entered the United States illegally by using the permanent resident alien card, or “green card,” of another person whom

Orozco resembled. 

Once inside the United States, Orozco developed an intimate relationship with Raquel Ontiveros, a United States citizen. On August 5, 2000, Raquel Ontiveros (then age 17) gave

birth to their first child. Orozco married Raquel Ontiveros

(hereinafter “Raquel Orozco”) on April 23, 2001. On March

10, 2004, Raquel Orozco gave birth to the couple’s second

child. 

In June 2001, Raquel Orozco filed an application for an

alien relative visa on Orozco’s behalf. At the same time,

Orozco applied for adjustment of status. The Immigration and

Naturalization Service (“INS”) subsequently approved Orozco’s visa application. The INS, however, denied Orozco’s

application for adjustment of status in 2002 after Orozco

failed to appear for a required hearing. 

Approximately three years later, immigration officials

apprehended Orozco while he was on business for his

employer. After apprehending Orozco, on April 13, 2005, the

government charged Orozco with removability pursuant to 8

U.S.C. § 1182(a)(6)(A)(i) based on his status as an alien present in the United States without being admitted or paroled, or

alternatively, as one who entered the United States at any time

or place other than one officially designated. The government

subsequently filed an amended charge of removability against

Orozco, pursuant to 8 U.S.C. § 1227(a)(1)(A), charging him

with presenting a counterfeit document to gain admission into

the United States. Orozco admitted the factual basis for the

amended charge and conceded removability. 

Despite Orozco’s concession that he was removable and his

admitted use of fraudulent documents in order to gain entry

2994 OROZCO v. MUKASEY
into the United States, Orozco filed another application for

adjustment of status pursuant to 8 U.S.C. § 1255(a) and a

waiver of inadmissibility pursuant to 8 U.S.C. § 1182(i).

Orozco contended that, because he presented himself at the

border for inspection and an immigration agent allowed him

to enter the United States, he was “inspected and admitted”

and thus eligible for adjustment of status pursuant to 8

U.S.C. § 1255(a). Orozco further argued that any fraud attendant to his entry into the United States could be waived under

8 U.S.C. § 1182(i). 

The IJ determined that Orozco was statutorily ineligible for

adjustment of status, because he could not satisfy the “lawful

entry” requirement of 8 U.S.C. § 1101(a)(13)(A). The IJ further held that, even if Orozco did qualify for a waiver of inadmissibility under 8 U.S.C. § 1182(i), Orozco nevertheless

remained statutorily ineligible for adjustment under 8 U.S.C.

§ 1255(a) because of his fraudulent entry into the United

States. 

In a one-member, unpublished decision, the BIA adopted

and affirmed the IJ’s decision in its entirety, citing Matter of

Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994), and “agree-

[ing] with the Immigration Judge that [Orozco] is ineligible

for adjustment of status . . . [because he] did not establish

lawful entry and admission pursuant to [8 U.S.C.

§ 1101(a)(13)(A)].” Because the BIA adopted the IJ’s decision and expressed no disagreement with it, we review the

IJ’s decision as if it were a decision of the BIA. Abebe v.

Gonzales, 432 F.3d 1037, 1039-40 (9th Cir. 2005) (en banc).

Orozco petitioned to this court for review. We have jurisdiction under 8 U.S.C. § 1252, and we deny Orozco’s petition.

II. Standard of Review and Jurisdiction

We review questions of law de novo. Hernandez-Gil v.

Gonzales, 476 F.3d 803, 804 n.1 (9th Cir. 2007). The BIA’s

OROZCO v. MUKASEY 2995
unpublished one-member decision is not entitled to deference

under Chevron U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837, 842-44 (1984). Ortega-Cervantes

v. Gonzales, 501 F.3d 1111, 1113-14 (9th Cir. 2007) (citing

Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1012, 1014 (9th

Cir. 2006)). Any deference afforded to the BIA’s interpretation of the governing statutes and regulations or the IJ’s interpretation of the same, which we review here as if it were the

decision of the BIA, “will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those

factors which give it power to persuade, if lacking power to

control.” Ortega-Cervantes, 501 F.3d at 1113-14 (internal

quotation marks omitted) (quoting Skidmore v. Swift & Co.,

323 U.S. 134, 140 (1944)); Garcia-Quintero, 455 F.3d at

1014-15 (“[W]e must undertake a Skidmore assessment of the

BIA’s decision to determine whether it warrants deference.”).

We lack jurisdiction to consider discretionary denials of

adjustment of status. Ortega-Cervantes, 501 F.3d at 1113 (citing 8 U.S.C. § 1252(a)(2)(B)(i)). However, we “retain jurisdiction to decide, as a matter of law, whether an alien is

statutorily eligible for adjustment of status.” Id. (citing 8

U.S.C. § 1252(a)(2)(D)).

III. Analysis

Orozco seeks adjustment of his legal status to that of a permanent resident alien pursuant to 8 U.S.C. § 1255(a). “Adjustment of status provides a means for certain aliens present

in the United States to become lawful permanent residents.”

Ortega-Cervantes, 501 F.3d at 1114. 

Because our determination as to whether Orozco is eligible

for adjustment of status requires statutory interpretation, we

first look to the relevant statutory provisions. See United

States v. Turkette, 452 U.S. 576, 580 (1981); Brock v. Writers

Guild of Am., W., Inc., 762 F.2d 1349, 1353 (9th Cir. 1985)

2996 OROZCO v. MUKASEY
(“In construing a statute in a case of first impression, we look

to the traditional signposts of statutory construction: first, the

language of the statute itself; second, its legislative history,

and as an aid in interpreting Congress’ intent, the interpretation given to it by its administering agency.” (internal citations omitted)). 

Section 245(a) of the Immigration and Nationality Act

allows for adjustment of status in certain circumstances:

The status of an alien who was inspected and admitted or paroled into the United States . . . may be

adjusted by the Attorney General, in his discretion

and under such regulations as he may prescribe, to

that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such

adjustment, (2) the alien is eligible to receive an

immigrant visa and is admissible to the United States

for permanent residence, and (3) an immigrant visa

is immediately available to him at the time his application is filed.

8 U.S.C. § 1255(a). 

[1] The term “admitted” is not defined in 8 U.S.C.

§ 1255(a). It is, however, defined in 8 U.S.C.

§ 1101(a)(13)(A). According to the statutory definition in that

section, “[t]he terms ‘admission’ and ‘admitted’ mean, with

respect to an alien, the lawful entry of the alien into the

United States after inspection and authorization by an immigration officer.” 8 U.S.C. § 1101(a)(13)(A) (emphasis added).

The definitions found in 8 U.S.C. § 1101(a)(13)(A) apply to

terms “used in [the] chapter” containing 8 U.S.C. § 1255(a).

See 8 U.S.C. § 1101(a). 

[2] Based on the unambiguous statutory language in 8

U.S.C. § 1255(a) and 8 U.S.C. § 1101(a)(13)(A), an alien’s

entry into the United States must be lawful for the alien to

OROZCO v. MUKASEY 2997
qualify for adjustment of status under 8 U.S.C. § 1255(a). We

further conclude that lawful entry requires more than simply

presenting oneself for inspection and being allowed to enter

the United States. 

Our holding is in accord with 8 C.F.R. § 101.2, which provides that an alien whose entry was made and recorded under

a mistake about his name shall be deemed to have been lawfully admitted so long as he proves that the record of claimed

admission relates to him and that the name recorded at the

time of the alien’s entry into the United States was not used

for the purpose of using the visa or passport of another person. 

We have recognized the applicability of 8 U.S.C.

§ 1101(a)(13)(A) to another section of the Immigration and

Nationality Act relating to removability. See Shivaraman v.

Ashcroft, 360 F.3d 1142 (9th Cir. 2004). In Shivaraman, we

reversed the BIA’s decision regarding an alien’s date of

admission to the United States for purposes of deciding

whether he had been convicted of a crime of moral turpitude

committed within five years of the date of admission. Id. at

1143-49. We concluded that the BIA unreasonably interpreted

the statutory language relating to the alien’s “date of admission.” In reaching that conclusion, we observed that 8 U.S.C.

§ 1101(a)(13)(A) “leaves no room for doubt, unambiguously

defining admission as the lawful entry of the alien into the

United States.” Shivaraman, 360 F.3d at 1146. 

Orozco argues that the “lawful entry” requirement imposed

by 8 U.S.C. § 1101(a)(13)(A) relates to the location of the

alien’s entry into the United States. Orozco argues that so

long as an alien presents himself for inspection at an authorized border crossing station and is allowed to enter the

United States, the alien’s entry was lawful for purposes of 8

U.S.C. § 1255(a). In essence, Orozco asks us to turn a blind

eye to criminal and fraudulent acts underlying his entry,

2998 OROZCO v. MUKASEY
because he arrived at an authorized border crossing station

and presented himself for inspection. 

[3] Orozco’s entry into the United States was not lawful.

See, e.g., 18 U.S.C. § 1001(a) (stating that it is a federal crime

for an individual knowingly and willfully to “make[ ] any

materially false, fictitious, or fraudulent statement or representation” or “make[ ] or use[ ] any false writing or document

knowing the same to contain any materially false, fictitious,

or fraudulent statement or entry . . .” “within the jurisdiction

of the executive, legislative, or judicial branch” of the United

States); see also 18 U.S.C. § 1028(a)(7) (prohibiting an individual from using “a means of identification of another person

with the intent to commit . . . any unlawful activity that constitutes a violation of Federal law.”). Therefore, we reject

Orozco’s argument that his entry, while criminal, was lawful

for purposes of 8 U.S.C. § 1255(a) because he presented himself for inspection and admission and was allowed to enter the

United States. To hold otherwise would create an “absurd

result,” which we must avoid, if possible, when interpreting

a statute. See Andreiu v. Ashcroft, 253 F.3d 477, 482 (9th Cir.

2001) (en banc). 

Orozco also argues that both the BIA and IJ erred by

declining to follow the BIA’s published decision in Matter of

Areguillin, 17 I. & N. Dec. 308 (BIA 1980). We disagree. In

Areguillin, an alien was allowed to cross the United States

border after a border control agent peered inside the vehicle

in which she was a passenger, asked the driver a question, and

then allowed the vehicle to pass. Id. at 309. The alien had no

documentation that would have allowed her legally to enter

the United States. Id. In denying relief under 8 U.S.C. § 1255,

the IJ held that the alien had not been sufficiently “inspected

and admitted” to allow for adjustment of status under 8

U.S.C. § 1255. Id.

The BIA in Areguillin reversed, holding that “[t]he rule that

an alien has not entered without inspection when he presented

OROZCO v. MUKASEY 2999
himself for inspection and made no knowing false claim to

citizenship applies in determining whether an alien has satisfied the inspection and admission requirement of [8 U.S.C.

§ 1255].” Id. at 310. The BIA concluded that for the purposes

of 8 U.S.C. § 1255, “ ‘[a]dmission’ occurs when the inspecting officer communicates to the applicant that he has determined that the applicant is not inadmissible [and] [t]hat

communication has taken place when the inspector permits

the applicant to pass through the port of entry.” Id. at 310, n.6

(internal citation omitted). 

Areguillin is of no persuasive value here because, with the

passage of the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (“IIRIRA”), Congress altered the

statutory framework upon which the Areguillin decision

rested. Prior to the enactment of IIRIRA, 8 U.S.C. § 1101(13)

defined “entry” but did not define “admission.” Further, the

definition for “entry” was silent on whether the “entry”

needed to be lawful. See 8 U.S.C. § 1101(13) (1994). With the

enactment of IIRIRA, Congress defined “admission” to

“mean, with respect to an alien, the lawful entry of the alien

into the United States after inspection and authorization by an

immigration officer.” 8 U.S.C. § 1101(a)(13)(A) (emphasis

added). In light of the amendment, Congress unambiguously

required lawful entry into the United States as a statutory prerequisite to adjustment of status under 8 U.S.C. § 1255(a).

Thus, Areguillin does not control. 

[4] Finally, Orozco argues that he is entitled to adjustment

of status under 8 U.S.C. § 1255(a) because he may be entitled

to a waiver of inadmissibility under 8 U.S.C. § 1182(i). We

disagree. In short, eligibility for a waiver of inadmissibility

does not make Orozco’s underlying entry into the United

States lawful. As discussed above, lawful entry is a statutory

prerequisite for adjustment of status under 8 U.S.C. § 1255(a).

Orozco did not satisfy this requirement and, accordingly, is

not eligible for adjustment under that section. 

3000 OROZCO v. MUKASEY
IV. Conclusion

We conclude that the IJ and the BIA correctly determined

that Orozco was statutorily ineligible for adjustment of status

under 8 U.S.C. § 1255(a). We therefore deny Orozco’s petition for review. 

PETITION DENIED. 

OROZCO v. MUKASEY 3001