PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 21-2563

VAMUSA KOSH ISHMAEL,

 Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF 

AMERICA

On Petition for Review of a Final Order 

Of the Board of Immigration Appeals

(BIA No.: A072-803-370)

Immigration Judge: Alice Song Hartye

Argued on January 18, 2023

Before: AMBRO*, PORTER, and FREEMAN, Circuit 

Judges

*Judge Ambro assumed senior status on February 6, 

2023.
2

(Opinion Filed May 16, 2023) 

Benjamin J. Hooper (Argued)

Pennsylvania Immigration Resource Center

294 Pleasant Acres Road

Suite 202

York, PA 17402

Counsel for Petitioner

Lindsay Marshall (Argued)

United States Department of Justice 

Office of Immigration Litigation

P. O. Box 848

Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

Jonah B. Eaton (Argued)

Nationalities Service Center

1216 Arch Street

4

th Floor

Philadelphia, PA 19107

Counsel for Amicus-Petitioner
3

OPINION OF THE COURT

 

AMBRO, Circuit Judge

Ishmael Kosh1 petitions us to review the order from the 

Board of Immigration Appeals (“BIA”) that terminated his 

asylum status and denied his applications for withholding of 

removal and protection under the Convention Against Torture. 

He maintains that the Department of Homeland Security 

(“DHS”) improperly sought to terminate his asylum status in 

asylum-only proceedings because he first entered the United 

States under the Visa Waiver Program. Per Kosh, that limiting 

program no longer applies to him, so he is entitled to completejurisdiction removal proceedings instead. In such unlimited 

proceedings, asylees can raise an adjustment-of-status claim as 

a defense to removal. We conclude that, if Kosh re-entered the 

country as an asylee without signing a new Visa Waiver 

Program form limiting his defenses, he is entitled to completejurisdiction proceedings. We thus grant his petition for 

review, vacate the BIA’s decision, and remand for further 

proceedings consistent with this opinion.

1 Though the caption throughout the immigration proceedings

and on petition to our Court refers to the petitioner as “Vamusa 

Kosh Ishmael,” the parties and other documents call him 

“Ishmael Kosh.” We follow the parties’ lead and do the same.
4

I. BACKGROUND

Kosh, a Liberian citizen, arrived in the United States in 

2001 with a false Portuguese passport and requested entry 

under the Visa Waiver Program (“VWP”). It allows 

noncitizens from designated countries—including Portugal, 

but not Liberia—to seek admission for up to 90 days as 

nonimmigrant visitors without obtaining a visa. 8 U.S.C. § 

1187(a). All VWP entrants must sign a Visa Waiver Form in 

which they “waive[] any right . . . to contest, other than on the 

basis of an application for asylum, any action for removal of 

the alien.” Id. § 1187(b)(2). Signing this waiver form is 

mandatory each time someone seeks entry through the VWP 

(even if the individual already signed one on a previous trip). 

See Form I-94W Nonimmigrant Visa Waiver 

Arrival/Departure Record, U.S. Customs and Border 

Protection, 

https://www.cbp.gov/sites/default/files/assets/documents/201

8-Mar/700120%20-%20CBP%20Form%20I94W%20ENG%20%281216%29%20-

20FINAL%20%28SAMPLE%29.pdf (last visited Apr. 28, 

2023) (“This form must be completed by every nonimmigrant 

visitor not in possession of a visitor’s visa who is a national of 

one of the countries enumerated in 8 C.F.R. [§] 217.”). When 

Kosh arrived in 2001, he signed upon arrival the waiver as part 

of his Form I-94W.

Kosh then confessed his Portuguese passport was fake 

and sought asylum. His matter was referred to an immigration 

judge (“IJ”) pursuant to 8 C.F.R. § 208.2(b), which affords IJs 

jurisdiction over asylum applications by VWP entrants. 

Although Kosh ultimately did not qualify for VWP entry 

because his Portuguese passport was fake, he was still 
5

restricted to the VWP’s asylum-only proceedings based on his 

initial application for entry through that program. See Shkembi 

v. Att’y Gen., 41 F.4th 237, 242 (3d Cir. 2022).2

In his asylum application, Kosh claimed he feared

returning to Liberia, which at the time had an ongoing civil 

war. Because his family members were involved with the 

United Liberation for Democracy political party, they faced 

significant violence and other dangers. His father had been 

murdered and Kosh himself was arrested before escaping

2 Unlike Kosh, the noncitizen in Shkembi was denied asylum 

in his limited-jurisdiction removal proceeding following his 

fraudulent entry under the VWP. See id. at 238. Because of 

that denial, he argued he should not be bound by the VWP’s 

limitations because he was a citizen of a non-VWP-participant 

country and thus could not have entered properly under that 

program. Id. Our Court’s decision in Shkembi rejected that 

argument and made clear that noncitizens who fraudulently 

enter the United States under the VWP with a fake passport 

cannot use their own fraud to escape waivers made under that 

program. Id. at 243. In line with this precedent, Kosh was 

placed appropriately in asylum-only proceedings back in 

2001. But Shkembi goes no further than that. It does not 

explain the outer bounds of the waiver. The opinion states 

neither that the waiver lasts indefinitely nor that any particular 

action cuts off its applicability. And because Shkembi himself 

never obtained asylum, the opinion could not instruct on what 

happens after a noncitizen, like Kosh, is granted asylum and 

travels legally using his refugee travel documents. Thus the 

dissent’s reliance on Shkembi to reason that Kosh should still 

be bound by the VWP in 2023 without regard to what occurred 

in the last two decades takes its holding too far.
6

prison and fleeing to the United States. The IJ granted Kosh 

asylum on March 1, 2001. Over the next few years, he lived in 

the United States as an asylee, married his wife, and had four

children. He left the country in 2005 using his refugee travel 

document and apparently re-entered later that year.

In 2006, Kosh became involved with a tax fraud 

conspiracy. He worked as a manager and tax preparer for a 

sham tax service company that filed false information on its 

clients’ tax returns to increase their refunds. The company then 

kept the additional refund amounts for itself and passed on a 

lower amount to its clients. Kosh played a large role in the 

conspiracy. He was involved for its full duration, was a 

manager or supervisor to five or more other participants in the 

criminal activity, recruited customers, and even started a new 

sham tax preparation business after the initial scheme was shut 

down.

In 2016, a jury convicted Kosh of conspiracy to defraud 

the United States, in violation of 18 U.S.C. § 371, and filing 

false and fraudulent income tax returns, in violation of 26 

U.S.C. § 7206(2). (He was acquitted of identity theft and one 

count of filing false and fraudulent income tax returns.) Kosh

received concurrent sentences of 52 months and 36 months in 

prison and was ordered to pay over $239,000 in restitution,

jointly and severally, with his co-defendants.

Between his arrest and conviction, the United States 

Citizenship and Immigration Services (“USCIS”) denied 

Kosh’s application to adjust his status to that of a lawful 

permanent resident. See 8 C.F.R. § 1209.2. He was statutorily 

eligible to apply because he had lived in the United States as 

an asylee for over a year and, although his criminal convictions 
7

could make him ineligible for adjustment of status, DHS can 

waive that ground of inadmissibility “for humanitarian 

purposes, to assure family unity, or when it is otherwise in the 

public interest.” 8 U.S.C. § 1159(c). Kosh’s denial was 

“without prejudice to the alien’s right to renew the application 

in [removal] proceedings under part 240 of this chapter.” 8 

C.F.R. § 1209.2(f).

Then, in 2020, DHS moved to reopen Kosh’s old 

asylum-only proceeding from 2001 to terminate his asylum 

status, given his criminal conviction. An IJ in Texas granted 

that motion. He then transferred venue to York, Pennsylvania 

(based on Kosh’s place of confinement) for a hearing on DHS’s 

motion to terminate his asylee status. Kosh, through counsel, 

moved to terminate the proceedings because the Court had, in 

his view, inappropriately reopened asylum-only proceedings. 

He maintained that DHS, instead of reopening his earlier 

proceedings, should have filed removal proceedings under 8 

U.S.C. § 1229a, which would have allowed him to seek 

adjustment of status. The type of proceeding Kosh sought, 

which is set out in 8 U.S.C. § 1229a, is also called a “§ 240 

proceeding” because the statute was created under section 240 

of the Immigration and Nationality Act (“INA”). 

On September 30, 2020, the IJ denied Kosh’s motion to 

terminate. She held that, because another IJ had previously

granted him asylum in limited proceedings, DHS properly 

moved to reopen those proceedings to terminate his asylee 

status. Further, she ruled that the Court lacked jurisdiction in 

the limited proceeding to decide an adjustment-of-status 

application and could only consider Kosh’s application for 

fear-based relief.
8

Kosh applied for all three types of fear-based relief: 

asylum, withholding of removal, and relief under the 

Convention Against Torture (“CAT”). On December 21, 2020, 

after a merits hearing, the IJ terminated Kosh’s asylee status 

and denied his applications for relief. She held that his 

convictions were aggravated felonies under 8 U.S.C. 

§ 1101(a)(43)(M)(i) (offenses involving fraud or deceit where 

the loss exceeds $10,000) and (a)(43)(U) (conspiracy to 

commit an aggravated felony). Kosh was thus no longer 

eligible for asylum or withholding of removal. 8 U.S.C. § 

1158(b)(2)(A)(ii); 8 U.S.C. § 1231(b)(3)(B)(ii). In addition, 

the IJ denied the CAT application on the merits. Overall, she

found that conditions in Liberia had changed since the civil war 

and that relief was not due based on Kosh’s ethnicity, Muslim 

faith, or alleged threats against him.

Kosh filed a pro se appeal.3 The BIA rejected his 

arguments that (1) the IJ erred in denying his motion to 

terminate and in placing him in asylum-only proceedings, (2) 

his convictions are neither aggravated felonies nor particularly 

serious crimes, and (3) he met his burden of proof for CAT 

relief.4 Kosh, through new counsel, filed a petition for review 

and a motion for a stay of removal pending review. Dkt. Nos. 

1, 2. Our Court granted the stay. Dkt. No. 16.

3 An attorney entered her appearance after Kosh filed his 

appeal. While counsel’s name appears on the BIA’s decision, 

the administrative record does not include a brief filed by 

counsel. The BIA addressed the arguments raised by Kosh as 

a pro se litigant.

4 Kosh does not challenge the denial of CAT relief on appeal 

to us, though he did challenge it before the BIA.
9

II. JURISDICTION AND STANDARD OF REVIEW

The BIA had jurisdiction under 8 C.F.R. § 1003.1(b). 

We have jurisdiction under 8 U.S.C. § 1252.

We review the final administrative decision of the BIA. 

Camara v. Att’y Gen., 580 F.3d 196, 201 (3d Cir. 2009). Legal 

determinations get a fresh review. Serrano-Alberto v. Att’y 

Gen., 859 F.3d 208, 213 (3d Cir. 2017). For factual 

determinations, we are bound by findings of fact that are 

supported by substantial evidence “unless a reasonable 

adjudicator would be compelled to arrive at a contrary 

conclusion.” Id. at 212-13.

III. ANALYSIS

Kosh argues we should vacate the BIA’s order of 

removal because (1) the Government did not meet its burden 

of showing he committed an aggravated felony to terminate his 

grant of asylum, and (2) it improperly placed him in asylumonly proceedings, depriving him of the opportunity to raise a 

claim for adjustment of status to lawful permanent resident in 

defense of removal. Though his first argument fails, if Kosh 

re-entered the country as an asylee and did not agree to any 

new waiver of defenses, he is correct that he is entitled to an 

unrestricted removal proceeding that will allow him to present 

his claim for lawful permanent residence to an IJ.

a. Kosh was convicted of an aggravated felony.

Kosh is ineligible for asylum if his conviction was for 

“an aggravated felony.” 8 U.S.C. §§ 1158(b)(2)(A)(ii) and 

(b)(2)(B)(i). That includes an offense that “involves fraud or 
10

deceit in which the loss to the victim or victims exceeds 

$10,000” and “conspiracy to commit [such an] offense.” 8 

U.S.C. §§ 1101(a)(43)(M)(i) and (U). Kosh concedes his 

convictions involved fraud but argues the Attorney General has 

not shown his convicted offenses resulted in victim loss 

exceeding $10,000.

The Attorney General has the burden to show by clear 

and convincing evidence that the loss amount specifically 

“tethered” to Kosh’s convictions exceeds $10,000. Nijhawan 

v. Att’y Gen., 523 F.3d 387, 395-96 (3d Cir. 2008), aff’d, 557 

U.S. 29 (2009). Because Kosh participated in a conspiracy, the 

loss must stem from the “specific way” he participated in the 

scheme. Rad v. Att’y Gen., 983 F.3d 651, 666-67 (3d Cir. 

2020).

Here, the IJ and BIA relied on substantial evidence in 

the record showing that Kosh’s specific involvement in the 

conspiracy resulted in a loss greater than $10,000. The record 

includes the judgment of the U.S. District Court of the District 

of Minnesota and the presentence investigation report. The 

judgment requires Kosh to pay $239,601 in restitution. The 

presentence investigation report explains that the estimated 

losses from his participation in the conspiracy are the full $2.5 

million because he was a main participant in the scheme. 

Given that Kosh’s participation in the scheme caused losses up 

to at least $239,601 (the amount of restitution ordered in the 

judgment against him) and possibly up to $2.5 million (the full 

loss estimated in the presentence report), his contribution far 

exceeds the $10,000 threshold. We affirm the IJ and BIA’s 

factual finding that Kosh committed an aggravated felony.
11

b. Although Kosh committed an aggravated 

felony, he may still be eligible for adjustment 

of status to lawful permanent resident.

Because Kosh was convicted of an aggravated felony, 

he is no longer eligible for asylum. 8 U.S.C. § 

1158(b)(2)(A)(ii); (b)(2)(B)(i). However, this conviction does 

not foreclose a claim for adjustment of status to lawful 

permanent resident. In general, asylees may apply for an 

adjustment of status to lawful permanent resident if they meet 

the statutory requirements contained in 8 U.S.C. § 1159(b). 

The adjustment statute requires that an asylee has lived in the 

United States for at least one year and “is admissible.” 8 

U.S.C. § 1159(b). As explained above, Kosh is inadmissible 

because he was convicted of an aggravated felony. However, 

the IJ may waive inadmissibility based on criminal convictions 

“for humanitarian purposes, to assure family unity, or when it 

is otherwise in the public interest.” 8 U.S.C. § 1159(c). So 

Kosh could adjust his status if he convinces an IJ that 

humanitarian purposes or family unity weigh in favor of 

waiving his inadmissibility.

Kosh meets the statutory requirements to apply for 

adjustment of status and an accompanying waiver of

admissibility. Even though the USCIS already denied his 

application for adjustment of status, he has the right to renew 

his application before an IJ. 8 C.F.R. § 1209.2(f). Thus, the 

question we turn to next—whether DHS can reopen asylumonly proceedings or must initiate complete removal 

proceedings (where Kosh could renew his adjustment claim)—

affects the defenses he can raise and the chances he has to 

remain in the United States.
12

c. If Kosh did not waive defenses to removal at 

his last entry, he is entitled to raise his claim 

for lawful permanent residence in an 

unrestricted removal proceeding.

Kosh still faces a hurdle because DHS reopened his 

asylum-only proceeding from 2001, and in that proceeding the 

IJ did not have jurisdiction to consider his claim for adjustment 

of status to lawful permanent resident. The parties dispute 

whether he is limited to asylum-only proceedings because he 

previously entered the United States through the VWP, under 

which he waived his right to challenge his removal on nonasylum grounds. We hold that the VWP no longer applies to 

an individual who leaves and re-enters the country as an asylee 

without signing an additional waiver of defenses to removal. 

Absent a new waiver upon his last entry, Kosh is entitled to 

raise his adjustment claim before an IJ in unrestricted

proceedings.

When Kosh first entered the United States in 2001, he 

signed the Visa Waiver Form that says, “I hereby waive any 

rights to review or appeal of an immigration officer’s 

determination as to my admissibility, or to contest, other than 

on the basis of an application for asylum, any action in 

deportation.” A.R. 773. Because he signed this waiver, his 

first immigration proceedings were limited to the question of 

asylum. But now he may be no longer bound by that waiver 

(or the limited procedures that come with it) if he left the 

country and re-entered as an asylee without signing a new 

waiver, not as a VWP entrant, in 2005.5

5 Kosh presents two distinct reasons why the waiver does not 

apply to him: (1) because he left and re-entered, and (2) 

because he was granted asylum status that displaced his status 
13

To understand the scope of the waiver, we interpret the 

Form I-94W that Kosh signed in 2001 governing the terms of 

his stay in the United States using familiar contract principles. 

Although the waiver applies to “any action in deportation,”

App. 778, we do not interpret that phrase “in a vacuum, but 

rather must carefully consider the parties’ context.” In re New 

Valley Corp., 89 F.3d 143, 149 (3d Cir. 1996); see also In re 

Stone & Webster, Inc., 558 F.3d 234, 246 (3d Cir. 2009) (“It is 

a general rule of contract construction to consider the entire 

instrument.” (internal quotation omitted)).

Here, the Form I-94W shows that its terms apply to the 

time spent in the U.S. starting with the entry at which the form 

was signed and continuing at most until the next departure. But 

it does not apply to visits begun by subsequent entries. This is 

most obviously demonstrated by the form’s specific caution 

that the VWP’s restrictions apply “during your visit under this 

program.” App. 773. Also, the form is titled the 

“Nonimmigrant Visa Waiver Arrival/Departure Form,” 

containing a section on arrival and separate section on 

departure. Id. at 772-73 (emphasis added). Finally, the visitor 

must “[r]etain this permit in [his] possession” for the duration 

of the visit but “must surrender it when [he] leave[s],” meaning 

that the visitor no longer has access to the contract or its terms 

for reference after departing. Id. at 773. Reading the waiver 

provision within its proper context reveals that it could apply 

only to any action between when the noncitizen arrives under 

the program and when he first departs.

as a VWP entrant. We address the first argument only and

express no opinion on the second.
14

Not surprisingly, DHS’s own practice aligns with this 

reading. It requires a VWP entrant to re-sign the I-94W waiver 

form every time the noncitizen enters the country. See Form I94W Nonimmigrant Visa Waiver Arrival/Departure Record, 

U.S. Customs and Border Protection,

https://www.cbp.gov/sites/default/files/assets/documents/201

8-Mar/700120%20-%20CBP%20Form%20I94W%20ENG%20%281216%29%20-

%20FINAL%20%28SAMPLE%29.pdf (last visited Apr. 28, 

2023) (“This form must be completed by every nonimmigrant 

visitor not in possession of a visitor’s visa who is a national of 

one of the countries enumerated in 8 C.F.R. [§] 217.”). This 

repetition would be unnecessary if signing the form once 

caused the waiver to apply in perpetuity.

To read the waiver provision otherwise would create 

illogical results. Consider a tourist who visits under the VWP 

and signs the waiver at age 18. She departs the U.S. and returns 

to her home country before the 90 days are up. A few years 

later she attends graduate school in the U.S., after properly 

obtaining a student visa, and again timely leaves the country 

before her visa expires. A decade later her U.S. citizen spouse 

files an immediate relative petition on her behalf. DHS 

approves the petition, and she is admitted into the U.S. as a 

lawful permanent resident. After she has lived in the U.S. for 

years as a lawful permanent resident, DHS decides she is 

deportable and serves her with a notice referring her to asylumonly proceedings based on the VWP waiver she signed at age 

18. Which rules should govern her removal proceedings: the 

terms of the VWP, those governing her student visa, or the 

added protections she receives as a lawful permanent resident? 

It would be illogical to conclude that removal proceedings 

should be governed by her VWP-entry rather than her later 
15

entry as a lawful permanent resident. See Amici Br. at 13

(highlighting the same absurdity in a similar hypothetical). 

Similarly, it would be illogical for Kosh to be bound by a 

previous VWP entry if he re-entered in 2005 as an asylee and 

did not re-sign the waiver contained in the I-94W Form.

Thus we hold that Kosh’s waiver to contest the basis of 

his removal applied at most for the duration from his entry in 

2001 until his departure in 2005. Cf. Freeman v. Gonzales, 444 

F.3d 1031, 1036 (9th Cir. 2006) (applying reasonable limits to 

the waiver and declining to “read the VWP no-contest 

restriction into the adjustment of status procedural regime, 

effectively denying VWP applicants the procedural due 

process all other applicants enjoy, when Congress has not done 

so explicitly”). When Kosh re-entered in 2005, he became 

subject to any new agreements he made with DHS at that time. 

If the terms of his new agreement do not include a waiver of 

all non-asylum claims, then he is entitled to a completejurisdiction proceeding—where he can pursue his adjustment 

claim—on remand.

Kosh submits that he re-entered in 2005 as an asylee 

using his refugee travel document and did not re-enter under 

the VWP. The INA authorizes DHS to provide these travel 

documents to asylees so that they may travel abroad. See 8 

C.F.R. § 223.1. When an asylee returns, he must present the 

document and “shall be accorded the immigration status 

endorsed in his or her refugee travel document.” 8 C.F.R. § 

223.3(d)(2)(i). Kosh applied for and received a governmentissued refugee travel document listing his status as an “asylee.” 

A.R. 36. And he alleges he used that document, rather than a 

fake Portuguese passport, to re-enter the United States in 2005.
16

The evidence in the record is short of complete but 

supports Kosh’s description of events. In his application and 

at the hearing before the IJ, Kosh said he had most recently 

entered the United States through New York in 2005 as an 

asylee. He supported his testimony with the record of his 

departure on May 16, 2005 and a copy of his refugee travel 

document that lists his “class” as “asylee.” A.R. 36. He must 

have re-entered at some time thereafter because he is currently 

in the United States, but the record does not include documents 

showing proof of his re-entry.6 On remand, the IJ and BIA 

should consider evidence regarding Kosh’s 2005 re-entry and 

determine whether he was admitted as an asylee or as a VWP 

entrant. If he was admitted as the former, then his 2001 waiver 

cannot apply to the subsequent asylee entry, and he is entitled 

to a complete-jurisdiction removal proceeding.

* * *

For these reasons, we grant Kosh’s petition for review, 

vacate the BIA’s decision, and remand for further proceedings 

consistent with this opinion.

6 DHS provided records as of 2020 that list Kosh’s most recent 

entry date as January 22, 2001. This record cannot be correct 

because there is evidence Kosh left the country in 2005. The 

IJ and BIA should require DHS to clarify the record on remand.
1

PORTER, Circuit Judge, concurring in part and dissenting in 

part. 

I concur with the majority opinion except for its 

conclusion in Section III.c that Kosh is entitled to anything 

more than an asylum-only proceeding. 

Kosh argues that although he fraudulently entered the 

United States under the Visa Waiver Program, he is no longer 

bound by his VWP waiver because he subsequently left and 

then re-entered the United States. The majority accepts Kosh’s 

reentry argument, but neither he nor the majority have adduced 

any authority supporting it. The majority simply asserts that it 

would be “illogical” to hold Kosh to his VWP waiver. Maj. Op. 

at 10-13. Under the majority’s theory, the mere act of leaving 

and reentering somehow erased Kosh’s fraudulent history and 

VWP waiver, so he should now be considered an asylee

afforded more rights. But no law supports the notion that 

departure and reentry changed Kosh’s status in any way. 

Our precedent is not so cavalier about fraudulent VWP

entrants. Just last year, we held that:

[A]n alien’s attempt to enter the United States 

under the VWP by presenting fraudulent travel 

documents subjects that alien to the terms of the 

VWP. Those terms limit the alien to asylum-only 

proceedings. It makes no difference if the alien 

violated the VWP by overstaying after lawful

entry . . . or by using fraudulent documents to 

enter or to attempt to enter the United States 

under the VWP. Once the alien has attempted to 

benefit from the VWP, he or she is bound by its 

terms. 
2

Shkembi v. Att’y Gen., 41 F.4th 237, 243 (3d Cir. 2022).

Lacking any textual justification to ignore Shkembi’s clear rule 

statement, I would hold Kosh to the terms of his VWP waiver.

Kosh also argues that the grant of asylum status in 2001 

replaced his VWP status entirely, again requiring DHS to place 

him in removal proceedings. But the “grant” of asylum status 

no more erased Kosh’s prior status as a fraudulent VWP 

entrant than did his subsequent departure and reentry; it merely 

added to it. A VWP entrant granted asylum is still a VWP 

entrant, so if his asylum status is removed, he remains subject 

to the VWP conditions. 

The INA refers to “adjustment” of status when it means 

to displace one status with another, such as an “adjust[ment] to 

the status of an alien lawfully admitted for permanent 

residence.” 8 U.S.C. § 1159(b). To “grant” is to give or confer. 

Black’s Law Dictionary (11th ed. 2019). By contrast, to 

“adjust” an alien’s status is to adapt or conform it to a particular 

use. Id. Applying the canon of meaningful variation, we should

recognize the distinction between “granting” and “adjusting” 

an alien’s status, as the Ninth Circuit did in Bare v. Barr, 975 

F.3d 952 (9th Cir. 2020). See also, A. Scalia & B. Garner, 

Reading Law 170 (2012) (“[W]here [a] document has used one 

term in one place, and a materially different term in another, 

the presumption is that the different term denotes a different 

idea.”).

In Bare, the court considered whether the grant of asylee 

status replaced or merely added to the petitioner’s status as a 

stowaway. Because “grant” and “adjust” mean different things, 

the court held that a grant of asylum does not terminate an 
3

alien’s status as a stowaway. Id. at 969-72. The same 

definitions and logic apply to VWP entrants such as Kosh. The

majority does not address the difference between “granting” 

and “adjusting” immigration status, but the distinction is valid,

and we should honor it. 

“Entering or attempting to enter the United States under 

the VWP by using fraudulent documents from a VWPparticipating country violates the VWP and subjects that alien

to the terms of the VWP, which includes the restriction to 

asylum-only proceedings.” Shkembi, 41 F.4th at 242. Because 

the majority creates an atextual exception to that rule, I 

respectfully dissent.