United States Court of Appeals

for the Fifth Circuit

No. 21-60045

Marco Kevin Ramirez-Lara, 

Petitioner,

versus

Merrick Garland, U.S. Attorney General, 

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A204 722 865

Before Stewart, Elrod, and Graves, Circuit Judges.

Jennifer Walker Elrod, Circuit Judge:*

Marco Kevin Ramirez-Lara, nearly 33 years old, petitions for review 

of an order of the Board of Immigration Appeals ordering his removal to 

Mexico, where he has not been since he was three years old. He contends

that he was “waved through” into the United States at a port of entry as a 

child. If true, he would not be removable as charged and might be eligible for 

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

August 3, 2022

Lyle W. Cayce

Clerk

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adjustment of status. Because Ramirez-Lara has shown that the BIA abused 

its discretion in holding that he was not waved through into the United 

States, we GRANT in part and DISMISS in part the petition for review.

I.

Ramirez-Lara’s mother brought him from Mexico to the United 

States when he was three years old. Now almost thirty years later, RamirezLara has never been back. He has lived in San Antonio ever since, where he 

attended elementary, middle, high school, and one year of college. In 2017, 

Ramirez-Lara got married to a United States citizen, a former high-school 

classmate and a registered nurse.

Shortly before their marriage, Ramirez-Lara was convicted of driving 

while intoxicated, a misdemeanor offense.1

 In 2018, he was sentenced and 

given a one-year probation. In February of 2019, while in a meeting with his 

probation officer, the Department of Homeland Security served RamirezLara with a notice to appear. The notice charged Ramirez-Lara as removable 

under 8 U.S.C. § 1182(a)(6)(A)(i) for being present in the United States 

without being admitted or paroled.

A.

Before the immigration judge, Ramirez-Lara argued that he was 

“waved through” by an inspections officer at the port of entry. If true, 

Ramirez-Lara would be lawfully admitted to the United States and therefore 

not—as charged—removable. See Matter of Quilantan, 25 I. & N. Dec. 285, 

290–91 (BIA 2010). In Quilantan, the BIA held, reaffirming a line of its cases, 

that an alien who “physically presents [him]self for questioning and makes 

1 This was Ramirez-Lara’s second DWI-related offense. In 2013, he was arrested 

for driving while intoxicated, though he ultimately pleaded guilty to a charge of obstructing 

a highway. 

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no knowing false claim to citizenship . . . , even though [he] volunteers no 

information and is asked no questions by the immigration authorities,” 

satisfies the definition of “inspected and admitted” in 8 U.S.C. § 1255(a), 

the adjustment of status statute. Quilantan, 25 I. & N. Dec. at 293. In doing 

so, it held that IIRIRA’s definition of “admission” and “admitted” in 8 

U.S.C. § 1101(a)(13)(A) “continue[s] to denote procedural regularity for 

purposes of adjustment of status, rather than compliance with substantive 

legal requirements.” Id. at 290. Following Quilantan, Ramirez-Lara argued 

that he was admitted—and therefore not removable—when he was “waved

through” into the United States as a young child. 

Ramirez-Lara’s grandmother, Berta de Lara, and mother, Arcelia de 

Lara, testified on his behalf before the IJ. Taken together, they testified to 

the following series of events. 

In 1993, Arcelia decided to leave Mexico with her son to visit the 

United States. Arcelia’s mother, Berta, and Arcelia’s sister, Georgina,

resided in the United States as lawful permanent residents. Upon hearing 

that Arcelia and Ramirez-Lara were coming to the United States, Berta and 

Georgina crossed the border into Mexico to accompany them. The five met 

in Nuevo Laredo and boarded a bus bound for the border.

When the bus arrived at the port of entry, Berta and Georgina were 

seated in the front of the bus. Arcelia, who had been seated further back, left 

the sleeping Ramirez-Lara with Berta when she deboarded to apply for her 

permit. After receiving her permit, Arcelia returned to her seat. When an 

immigration officer boarded the bus to check the passengers’ documentation, 

Ramirez-Lara began to cry. At the immigration officer’s suggestion, 

Georgina returned Ramirez-Lara to his mother and then returned to her seat.

When the immigration officer reached Arcelia, he looked at her papers 

and told her that she was “good.” He did not ask her anything about 

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documents for Ramirez-Lara. The immigration officer finished checking 

documentation, stepped off the bus, and told the driver that “all was good 

and to continue.” From there, the family entered the United States and 

arrived in San Antonio.

Georgina, however, did not appear to testify. On cross examination, 

the government attorney pressed Berta and Arcelia on Georgina’s absence 

and whether they heard Georgina’s conversation with the immigration 

officer—the implication being that Georgina may have falsely represented 

Ramirez-Lara’s status. Berta, who sat next to Georgina on the bus, testified 

that Georgina and the immigration officer had a conversation in English that 

she could not understand. And Arcelia, who was sitting in the back, testified 

that she could not hear their conversation.

In an oral decision, the immigration judge sustained the charge of 

removability, concluding that Ramirez-Lara had not carried his burden to 

show that he was lawfully admitted. It determined that Georgina’s inability 

to testify about her conversation with the immigration officer was a “critical 

gap in th[e] evidence.” Because no one could testify to the nature of 

Georgina’s conversation with the immigration official—including whether 

she falsely represented Ramirez-Lara’s immigration status—the IJ was “not 

able to conclude” that Ramirez-Lara was waved through.

Accordingly, Ramirez-Lara filed a motion to reconsider and included 

an affidavit from Georgina. In it, Georgina explained that her husband 

prohibited her from appearing to testify because of her severe anxiety. 

Georgina confirmed that she had traveled with Berta, Arcelia, and RamirezLara from Mexico to San Antonio. But she testified that she did not 

remember any details about the trip except that Ramirez-Lara started crying 

on the bus. Despite this affidavit, the IJ denied the motion to reconsider. 

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The IJ also denied Ramirez-Lara’s applications for adjustment of 

status and cancellation of removal, as well as his request for voluntary 

departure. Reiterating that Ramirez-Lara had not shown that he was lawfully 

admitted, the IJ held that he was statutorily ineligible for adjustment of status 

and, alternatively, that his two DWI-related convictions did not entitle him 

to adjustment as a matter of discretion. Similarly, the IJ held that RamirezLara was statutorily ineligible for cancellation of removal and declined to 

grant it as an exercise of discretion. Having done so, the IJ ordered that 

Ramirez-Lara be removed to Mexico.

B.

On appeal to the BIA, Ramirez-Lara challenged the denial of his wavethrough claim, application for adjustment of status, and request for voluntary 

departure. He expressly abandoned appealing the denial of cancellation of 

removal.

Citing only the “evidentiary gap” of Georgina’s testimony, the BIA 

did “not find clear factual or legal error in the Immigration Judge’s 

determination that the respondent is removable as charged.” Nor did it 

quibble with the denial of adjustment of status. Citing Matter of CastilloPerez, 27 I. & N. Dec. 664, 673 (AG 2019), the BIA “agree[d] . . . that 

[Ramirez-Lara] did not establish his statutory eligibility for adjustment of 

status . . . , or that he merited such relief in the exercise of discretion.” After 

affirming that Ramirez-Lara was not entitled to voluntary departure, the BIA 

dismissed the appeal.

II.

Now on petition for review, Ramirez-Lara makes three arguments. 

First, he reasserts that he is not removable because he was waved through 

into the United States. Second, he contends that the IJ and BIA erred by 

finding him statutorily ineligible for adjustment of status. And third, he 

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argues that in denying adjustment of status as a matter of discretion and 

voluntary departure as a matter of statutory eligibility and discretion, the IJ 

and BIA erred by applying the attorney general’s decision in Matter of 

Castillo-Perez retroactively to his DWI-related convictions.

A.

“We review the BIA’s decision, and we review the IJ’s decision only 

to the extent it influenced the BIA.” Arulnanthy v. Garland, 17 F.4th 586, 

592 (5th Cir. 2021). This court reviews the BIA’s legal conclusions de novo

and its findings of fact for substantial evidence. Id. Under the substantial 

evidence standard, we may not reverse factual findings unless the alien 

proves “that the evidence is so compelling that no reasonable factfinder 

could reach a contrary conclusion.” Zhao v. Gonzales, 404 F.3d 295, 306 (5th 

Cir. 2005). 

B.

First, Ramirez-Lara reasserts that he is not removable because he was 

waved through into the United States as a child. We agree. 

Aliens charged with removability must show by “clear and convincing 

evidence” that they are “lawfully present in the United States pursuant to a 

prior admission.” 8 U.S.C. § 1229a(c)(2)(B). The term “admission” means 

“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). Under 

BIA precedent, “admission” under § 1101(a)(13)(A) requires only 

“procedural regularity, not compliance with substantive legal 

requirements.” Quilantan, 25 I. & N. Dec. at 290.2 Thus, “an alien who

2 This precedent has been recognized and applied by this court. E.g., Gomez v. 

Lynch, 831 F.3d 652, 657, 658 (5th Cir. 2016); Tula Rubio v. Lynch, 787 F.3d 288, 292–93 

(5th Cir. 2015); Avalos-Martinez v. Johnson, 560 F. App’x 385, 388–89 (5th Cir. 2014).

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physically presents [him]self for questioning and makes no knowing false 

claim to citizenship” is “admitted” under § 1101(a)(13)(A) and “inspected 

and admitted” for adjustment of status purposes under § 1255(a). Id. at 291–

93 (citing Matter of Areguillin, 17 I. & N. Dec. 308 (BIA 1980)). The parties 

do not dispute that these “wave through” admissions count as “admissions” 

for purposes of removability and adjustment of status. They dispute only 

whether the BIA correctly concluded that Ramirez-Lara was not waved 

through.

Ramirez-Lara has shown that “the evidence is so compelling that no 

reasonable factfinder” could agree with the BIA that he was not waved 

through. Zhao, 404 F.3d at 306. The immigration officer knew that Arcelia 

was Ramirez-Lara’s mother, did not ask her for his documentation, and 

allowed both of them into the United States. 

At his immigration hearing, Ramirez-Lara—who the IJ found to be 

credible—presented two first-hand witnesses to his arrival in the United 

States. Berta testified that the immigration officer knew that Arcelia was 

Ramirez-Lara’s mother. When the immigration officer asked why RamirezLara was crying, Berta said, “because he wants to go with his mother,” who 

Berta indicated was further back on the bus. In response, the immigration 

officer told her to take Ramirez-Lara to Arcelia, which Georgina did. And 

when the immigration officer arrived at Arcelia’s seat to check her 

documentation, Arcelia testified that the immigration officer did not ask her 

anything about her son, who she was holding in her arms. Under these 

circumstances, no reasonable factfinder could conclude that Ramirez-Lara 

was not waved through. 

This is true even if Georgina falsely represented Ramirez-Lara’s 

status. The immigration officer knew that Arcelia, and not Georgina or 

Berta, was Ramirez-Lara’s mother. And the immigration officer knew that 

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Arcelia, who was holding Ramirez-Lara at the time, needed documentation 

to enter the United States. Where the immigration officer knew who 

Ramirez-Lara’s mother was, knew she needed documentation to enter the 

United States, and had the opportunity to check her documentation and ask 

about her son’s status, a sixteen-year-old’s false representation would not be 

attributable to Ramirez-Lara for purposes of wave-through admission. 

C.

Next, Ramirez-Lara contends that the IJ and BIA erred by denying his 

application for adjustment of status. While we lack jurisdiction to review the 

purely discretionary denial of adjustment of status, we hold that the BIA 

erred in holding that Ramirez-Lara was statutorily ineligible.

As with cancellation of removal, whether an alien is statutorily eligible

for adjustment of status involves questions of law that we review de novo. 

8 U.S.C. § 1252(a)(2)(D); see Trejo v. Garland, 3 F.4th 760, 766–67 (5th Cir. 

2021). However, we lack jurisdiction to review denials of discretionary relief 

based purely on the attorney general’s discretion. 8 U.S.C. § 1252(a)(2)(B); 

Hadwani v. Gonzales, 445 F.3d 798, 800 (5th Cir. 2006). Furthermore, we 

“lack jurisdiction to review facts found as part of discretionary-relief 

proceedings under § 1255 and the other provisions enumerated in 

§ 1252(a)(2)(B)(i).” Patel v. Garland, 142 S. Ct. 1614, 1627 (2022). 

Adjustment of status permits the attorney general to “adjust” the 

“status of an alien who was inspected and admitted or paroled into the 

United States . . . to that of an alien lawfully admitted for permanent 

residence.” 8 U.S.C. § 1255(a). Aliens who have been “inspected and 

admitted or paroled” are eligible for adjustment of status 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 

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residence, and (3) an immigrant visa is immediately available to him at the 

time his application is filed.” Id.

The IJ and BIA held that Ramirez-Lara was statutorily ineligible for 

adjustment of status because he was not “inspected and admitted” into the 

United States. This was error for the same reason that Ramirez-Lara is not 

removable. In Quilantan, the BIA held that a wave-through admission 

satisfies the “inspected and admitted” requirement for adjustment of status

in § 1255(a). 25 I. & N. Dec. at 291–93. We agree, and because we have 

already held that Ramirez-Lara was waved through to the United States, 

Ramirez-Lara has been “inspected and admitted” for purposes of 

adjustment of removal. Therefore, the BIA erred by holding that RamirezLara was statutorily ineligible for adjustment of status on this basis. 

However, adjustment of status does not end here. Because 

adjustment of status is discretionary relief, in addition to meeting the 

statutory requirements the alien must also show that he merits an exercise of 

the attorney general’s discretion. 8 U.S.C. § 1255(a). 

As an alternative to Ramirez-Lara’s purported statutory ineligibility, 

the IJ also denied adjustment of status as a matter of discretion. It noted that 

the attorney general has instructed that “any decision to grant or deny 

adjustment of status . . . should include a careful analysis of whether an 

applicant with multiple DWI convictions merits such relief as a matter of 

discretion.” Matter of Castillo-Perez, 27 I. & N. Dec. 664, 673 n.3 (AG 2019). 

“Because [Ramirez-Lara] effectively has two DWI convictions, both of 

which are recent, and because [Ramirez-Lara] has failed to supply sufficient 

evidence . . . to overcome the presumption against a favorable exercise of 

discretion,” the IJ held that Ramirez-Lara did not merit its discretion. The 

BIA affirmed, also citing Castillo-Perez.

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Ramirez-Lara argues that the retroactive application of Castillo-Perez, 

a 2019 case, to his pre-2019 DWI-related convictions was wrong as a matter 

of law and violates the Due Process Clause. But while we may review an 

alien’s statutory eligibility, we may not review the attorney general’s purely 

discretionary decision to deny adjustment of status. 

8 U.S.C. § 1252(a)(2)(B); e.g., Hadwani, 445 F.3d at 800. Though phrased 

as errors of law, Ramirez-Lara’s objectionsto the application of Castillo-Perez 

ask us to do just that. We lack jurisdiction to consider this argument.3

 

D.

Finally, Ramirez-Lara argues that the IJ and BIA improperly applied 

Castillo-Perez retroactively to deny his request for voluntary departure, both 

as a matter of statutory eligibility and discretion. But we lack jurisdiction to 

consider these claims because they are unexhausted. See 8 U.S.C. § 1252(d) 

(providing that courts may review final orders of removal “only if . . . the 

alien has exhausted all administrative remedies as of right”). When a 

petitioner alleges that the IJ erred, the issue is unexhausted when it “is not 

raised in the first instance before the BIA[.]” Roy v. Ashcroft, 389 F.3d 132, 

137 (5th Cir. 2004) (quotation omitted). Similarly, when a petitioner alleges 

that the BIA’s decision “results in a new issue,” such as a due process 

violation, the issue is unexhausted when it is not raised in a motion for 

reconsideration before the BIA. Martinez-Guevara v. Garland, 27 F.4th 353, 

360 (5th Cir. 2022) (quotation omitted).

Despite his current contention that the IJ improperly applied CastilloPerez retroactively, Ramirez-Lara did not raise this issue to the BIA on direct 

appeal. Alternatively, even if these were “new issues” that could not have 

3 We lack jurisdiction over this argument for the additional reason that it is 

unexhausted. See infra Part II.D.

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been raised on direct appeal, Ramirez-Lara did not raise them as soon as he 

could in a motion for reconsideration. Because these issues are unexhausted, 

we lack jurisdiction to consider them. 8 U.S.C. § 1252(d); MartinezGuevara, 27 F.4th at 360.4 

* * *

For these reasons, we GRANT in part and DISMISS in part the 

petition for review. We GRANT the petition as to whether Ramirez-Lara 

was waved through for purposes of removability and adjustment of status. 

We DISMISS the petition as to the unexhausted retroactive-application 

claims and the purely discretionary denials of adjustment of status and 

voluntary departure. Accordingly, we VACATE the BIA’s order and 

REMAND to the BIA for further proceedings in light of this opinion.

4 Furthermore, we lack jurisdiction over the discretionary denial of voluntary 

departure for the additional reason that we lack jurisdiction to review the attorney general’s 

purely discretionary denial of discretionary relief. See 8 U.S.C. § 1252(a)(2)(B); e.g.,

Hadwani, 445 F.3d at 800.

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