FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JIM ROUTE,

Petitioner,

v.

MERRICK B. GARLAND, Attorney 

General,

Respondent.

No. 19-72854

Agency No.

A215-927-145

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted April 13, 2021

Pasadena, California

Filed May 6, 2021

Before: MILAN D. SMITH, JR. and SANDRA S. IKUTA, 

Circuit Judges, and KATHRYN H. VRATIL,*

District Judge.

Opinion by Judge Milan D. Smith, Jr.

* The Honorable Kathryn H. Vratil, United States District Judge for 

the District of Kansas, sitting by designation.
2 ROUTE V. GARLAND

SUMMARY**

Immigration

Denying Jim Route’s petition for review of a decision of 

the Board of Immigration Appeals concluding that he was 

removable for having been convicted of a crime of moral 

turpitude (CIMT) within five years after the date of 

admission, 8 U.S.C. § 1227(a)(2)(A)(i), the panel deferred to 

the BIA’s interpretation of the phrase “date of admission” as 

referring to the date of the admission by virtue of which the 

individual was present when he or she committed the 

relevant crime. 

Route, a citizen of the Federated States of Micronesia 

(FSM), was admitted to the United States in 2005 and again 

in 2015. In 2018, he was convicted of unlawful 

imprisonment in the first degree, in violation of Hawai‘i law. 

Under 8 U.S.C. § 1227(a)(2)(A)(i), an individual is 

removable if he or she is convicted of a CIMT within five 

years after the “date of admission,” and is convicted of a 

crime for which a sentence of one year or longer may be 

imposed. The BIA concluded that Route’s offense 

constituted a qualifying CIMT, and that it rendered him 

removable because he was convicted within five years of his 

2015 admission. The BIA relied on its published decision in 

Matter of Alyazji, 25 I. & N. Dec. 397 (BIA 2011), in which 

it held that “date of admission,” in the context of 

§ 1227(a)(2)(A)(i), refers to the “date of the admission by 

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
ROUTE V. GARLAND 3

virtue of which the alien was present in the United States 

when he committed his crime.”

Although the BIA’s decision in Route’s case was 

unpublished, the panel concluded that it was eligible for 

deference pursuant to Chevron U.S.A., Inc. v. Natural 

Resources Defense Council, Inc., 467 U.S. 837 (1984), 

because it was directly controlled by a published decision, 

namely Alyazji. At step one of Chevron, the panel concluded 

the phrase “date of admission” is ambiguous, explaining that 

the statute makes no attempt to distinguish which admission 

is the relevant one when there are multiple admissions. At 

step two of Chevron, the panel held that the BIA’s 

interpretation in Alyazji was reasonable, noting that the BIA: 

1) employed traditional tools of statutory interpretation; 

2) considered alternative interpretations; 3) rejected the 

interpretation that would focus on the first admission as not 

reconcilable with the language and purpose of the statute; 

and 4) considered changes to the statutory language, its own 

precedent, and precedent of the Courts of Appeals. 

Route argued that the Alyazji interpretation did not 

comport with the Compact of Free Association governing 

the relationship between the United States and the 

FSM. Pursuant to the Compact, a Micronesian citizen may 

be admitted to the United States and engage in occupations 

and establish residence as a nonimmigrant without visa 

approval or labor certification. The panel rejected Route’s 

contention, explaining that the text of the Compact clearly 

subjects Micronesian citizens to the removability grounds of 

§ 1227(a).
4 ROUTE V. GARLAND

COUNSEL

Michaela Posner (argued) and Patrick Randell (argued), 

Certified Law Students; Jennifer Lee Koh (argued),

Supervising Attorney; University of California, Irvine,

School of Law, Irvine, California; Peter Afrasiabi, One LLP, 

Newport Beach, California; for Petitioner.

Sara J. Bayram (argued), Trial Attorney; Aimee J. 

Carmichael, Senior Litigation Counsel; John W. Blakeley, 

Assistant Director; Brian M. Boynton, Acting Assistant 

Attorney General; Office of Immigration Litigation, Civil 

Division, United States Department of Justice, Washington, 

D.C.; for Respondent.

OPINION

M. SMITH, Circuit Judge:

Jim Route, a citizen of the Federated States of 

Micronesia (FSM), was admitted to the United States twice: 

once in 2005, and again in 2015. In 2018, Route was 

convicted of unlawful imprisonment in the first degree, in 

violation of Hawai‘i law. Subsequently, an immigration 

judge (IJ) ordered Route removed for having been 

“convicted of a crime involving moral turpitude committed 

within five years . . . after the date of admission.” 8 U.S.C. 

§ 1227(a)(2)(A)(i)(I). The IJ relied on Route’s 2015 entry 

as the relevant admission for the purposes of 

§ 1227(a)(2)(A)(i)(I). In an unpublished decision, the BIA 

affirmed the IJ’s ruling. The BIA held that the 2015 

admission constituted the relevant admission for the 

purposes of the statute pursuant to the reasoning in its 

previous published decision, Matter of Alyazji, 25 I. & N. 
ROUTE V. GARLAND 5

Dec. 397 (BIA 2011). Route petitions for review of the 

BIA’s decision and argues that his 2005 admission should 

govern application of § 1227(a)(2)(A)(i)(I).

Although the BIA’s decision in this case is unpublished, 

it is “directly controlled by a published decision,” namely 

Alyazji. Uppal v. Holder, 605 F.3d 712, 714 (9th Cir. 2010). 

Thus, the BIA’s decision is eligible for deference pursuant 

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

Council, Inc., 467 U.S. 837 (1984). See Uppal, 605 F.3d 

at 714. Turning to the two-step Chevron inquiry, we 

conclude that: (1) the phrase “the date of admission” in 

§ 1227(a)(2)(A)(i)(I) is ambiguous; and (2) Alyazji’s 

interpretation of that ambiguous phrase is “a permissible 

construction of the statute,” Chevron, 467 U.S. at 843. 

Therefore, we defer to the BIA’s interpretation and deny the 

petition for review.

I. Factual and Procedural Background

The relationship between the United States and the 

Federated States of Micronesia is governed by a Compact of 

Free Association. See Compact of Free Association 

Amendments Act of 2003 (US-FSM COFA), Pub. L. No. 

108-188, 117 Stat. 2720.1 Pursuant to the US-FSM COFA, 

a Micronesian citizen “may be admitted to, lawfully engage 

in occupations, and establish residence as a nonimmigrant in 

the United States . . . without regard to . . . 8 U.S.C. 

[§] 1182(a)(5) or (7)(B)(i)(II),” which contain requirements 

for labor certifications and visas. US-FSM COFA § 141(a).

1 The US-FSM COFA is not part of the United States Code, but the 

text of the agreement can be found here: https://www.congress.gov/108

/plaws/publ188/PLAW-108publ188.pdf.
6 ROUTE V. GARLAND

Taking advantage of his rights pursuant to the US-FSM 

COFA, Route, who was born in Micronesia, entered the 

United States in November 2005 as a nonimmigrant. Route 

lived and worked in Hawai‘i. In 2015, Route returned to 

Micronesia for a vacation with his children; they stayed for 

less than two months. In June 2015, Route returned to the 

United States and was again admitted as a nonimmigrant. In 

June 2018, Route was convicted of unlawful imprisonment 

in the first degree, a class C felony, in violation of Hawaii 

Revised Statutes § 707-721(1). Route was sentenced to 

68 days’ imprisonment and four years’ probation.

In 2019, the Department of Homeland Security (DHS) 

charged that Route was removable pursuant to 8 U.S.C. 

§ 1227(a)(2)(A)(i), which provides:

Any alien who—

(I) is convicted of a crime involving 

moral turpitude committed within five 

years . . . after the date of admission, and

(II) is convicted of a crime for which a 

sentence of one year or longer may be 

imposed,

is deportable.

At a hearing before the IJ, Route conceded that he was 

admitted to the United States in 2015 and that he was 

convicted of unlawful imprisonment in 2018. DHS also 

alleged that a sentence of one year or more can be imposed 

for a violation of § 707-721(1), which Route did not contest. 

See Hawaii Revised Statutes § 706-660(1)(b) (providing that 
ROUTE V. GARLAND 7

the “maximum length of imprisonment” for a class C felony 

is “five years”).

The IJ held that unlawful imprisonment in the first 

degree is a crime involving moral turpitude (CIMT). With 

little explanation, the IJ also noted that Route’s 2015 entry 

was the relevant date of admission for the purposes of 

§ 1227(a)(2)(A)(i)(I). Because Route was not eligible for

any form of relief, the IJ ordered Route removed.

The BIA affirmed in an unpublished decision. The BIA 

agreed that unlawful imprisonment in the first degree 

constitutes a CIMT.2 With regard to the date of admission, 

the BIA, quoting Alyazji, 25 I. & N. Dec. at 406, noted that 

it had “held that in the context of [§ 1227(a)(2)(A)(i)], ‘the 

phrase “the date of admission” refers to the date of the 

admission by virtue of which the alien was present in the 

United States when he committed his crime.’” Thus, 

according to the BIA, “[a]though [Route] may have been 

lawfully admitted in 2005, he was also lawfully admitted on 

June 8, 2015, which was less than 5 years prior to the 

commission of his CIMT.” The BIA dismissed the appeal 

and ordered Route removed.

II. Matter of Alyazji

Before Matter of Alyazji, the BIA interpreted the phrase 

“the date of admission” from § 1227(a)(2)(A)(i)(I) in In re 

Shanu, 23 I. & N. Dec. 754 (BIA 2005). In that decision, the 

BIA “conclude[d] that the term ‘date of admission’ in 

2 A few weeks after the BIA rendered its decision in Route’s case, 

we held in an unrelated case that unlawful imprisonment in the first 

degree, as defined by Hawai‘i law, is a CIMT. See Fugow v. Barr, 

943 F.3d 456 (9th Cir. 2019) (per curiam). Route does not challenge this 

aspect of the BIA’s ruling.
8 ROUTE V. GARLAND

[§ 1227(a)(2)(A)(i)] refers to, among other things, the date 

on which an alien is lawfully admitted for permanent 

residence by means of adjustment of status.” Id. at 757. In 

other words, according to the rule set forth in Shanu, when 

an individual adjusted his or her status to be a lawful 

permanent resident (LPR), but did not physically leave and 

reenter the country, that adjustment of status was an 

“admission” and would reset the five-year clock for the 

purposes of § 1227(a)(2)(A)(i)(I).

A number of circuit courts criticized this interpretation 

of § 1227(a)(2)(A)(i)(I). See Alyazji, 25 I. & N. Dec. at 402. 

We were among them. See Shivaraman v. Ashcroft, 

360 F.3d 1142 (9th Cir. 2004). In Alyazji, the BIA 

reconsidered its decision in Shanu, believing that the Shanu

decision “paid insufficient attention” to the fact that in 1990 

Congress substituted the term “after entry” with “within five 

years after the date of entry.” Alyazji, 25 I. & N. Dec. at 405.

Starting from scratch in its interpretation of 

§ 1227(a)(2)(A)(i)(I), the BIA applied the two-step approach 

from Chevron. First, the BIA noted that “[w]hen an alien 

with a single [CIMT] conviction has multiple ‘admissions,’ 

this language begs the question of which ‘date of admission’ 

should be viewed as having started the 5-year clock.” Id.

at 400. Thus, the BIA held that because “[t]he statutory 

language does not specify which of an alien’s various 

admissions should be considered, . . . the statute [is] 

ambiguous in that regard.” Id. at 405.

Next, the BIA attempted to “arrive at a reasonable 

construction of the statute, taking into account the language 

and structure of the [INA] as a whole.” Id. The BIA rejected 

DHS’s proposed rule of using a case-by-case approach, as 

the BIA believed that such an interpretation “would 
ROUTE V. GARLAND 9

introduce unpredictability and incoherence to the law.” Id.

at 404.

Instead, the BIA adopted the following rule:

Given that [§ 1227(a)] is focused on 

admission plus presence, we find that the 

most natural reading of [§ 1227(a)(2)(A)(i)] 

is that the phrase “the date of admission” 

refers to the date of the admission by virtue 

of which the alien was present in the United 

States when he committed his crime.

Thus, to ascertain an alien’s deportability 

under [§ 1227(a)(2)(A)(i)] of the [INA], we 

look first to the date when his crime was 

committed. If, on that date, the alien was in 

the United States pursuant to an admission 

that occurred within the prior 5-year period, 

then he is deportable. Conversely, the alien 

is not deportable if he committed his offense 

more than 5 years after the date of the 

admission pursuant to which he was then in 

the United States. Moreover, under this 

understanding of the phrase “the date of 

admission,” the 5-year clock is not reset by a 

new admission from within the United States 

(through adjustment of status). Rather, such 

a new admission merely extends an existing 

period of presence that was sufficient in and 

of itself to support the alien’s susceptibility to 

the grounds of deportability.

Id. at 406–07 (footnotes omitted) (emphasis in original).
10 ROUTE V. GARLAND

Alla Adel Alyazji had been admitted to the United States 

as a nonimmigrant in August 2001. Id. at 398. Alyazji never 

left the United States, and in 2006 he adjusted his status to 

LPR. Id. In 2008, he was convicted of a CIMT. Id. The 

BIA applied its new interpretation of § 1227(a)(2)(A)(i)(I) 

to Alyazji and held that although he was technically 

“‘readmitted’ by means of adjustment of status in April 

2006,” that adjustment of status “did not reset the 5-year 

clock because it added nothing to the deportability inquiry.” 

Id. at 408.

Finally, the BIA applied its new rule to a hypothetical 

situation that did not involve an adjustment of status, but 

instead included two admissions by physical entry to the 

United States. The BIA described the case of “an alien who 

was admitted to the United States as a nonimmigrant tourist 

in 1990 on a family trip with his parents, and who returned 

to his home country a few weeks later in compliance with 

the terms of his temporary visa.” Id. at 407. Then, “in the 

summer of 1998, the same alien was once again admitted to 

the United States, this time as a nonimmigrant college 

student.” Id. at 407–08. If that hypothetical individual 

subsequently committed a CIMT in 2002, “[u]nder the 

[Alyazji] interpretation of [§ 1227(a)(2)(A)(i)(I)], the alien is 

deportable because, on the date when he committed his 

offense in 2002, he was in the United States pursuant to his 

admission as a nonimmigrant student in 1998, less than 

5 years earlier.” Id. at 408. In contrast, the 1990 “‘date of 

admission’ is irrelevant because the alien was not in the 

United States pursuant to that first admission when he 

committed his crime.” Id.

III. Mead

“[W]e review de novo the BIA’s determination of 

questions of law, except to the extent that deference is owed 
ROUTE V. GARLAND 11

to its interpretation of the governing statutes and 

regulations.” Garcia-Quintero v. Gonzales, 455 F.3d 1006, 

1011 (9th Cir. 2006), overruled on other grounds by 

Medina-Nunez v. Lynch, 788 F.3d 1103 (9th Cir. 2015) (per 

curiam). We only owe Chevron deference, however, “when 

it appears that Congress delegated authority to the agency 

generally to make rules carrying the force of law, and that 

the agency interpretation claiming deference was 

promulgated in the exercise of that authority.” United States 

v. Mead Corp., 533 U.S. 218, 226–27 (2001).

The BIA’s “interpretations of the INA made in the 

course of adjudicating cases before it satisfy the first 

requirement for Chevron deference set forth in Mead.” 

Marmolejo-Campos v. Holder, 558 F.3d 903, 909 (9th Cir. 

2009) (en banc). However, “[w]hether the [BIA’s] 

interpretations of the INA satisfy Mead’s second 

requirement depends on the form the [BIA’s] decision 

takes.” Id. “[W]e have held that the [BIA’s] precedential 

orders, which bind third parties, qualify for Chevron

deference because they are made with a ‘lawmaking 

pretense.’ We have not accorded Chevron deference to the 

[BIA’s] unpublished decisions, however, because they do 

not bind future parties.” Id. (citation omitted); see also 

Ceron v. Holder, 747 F.3d 773, 785 (9th Cir. 2014) (en banc) 

(“We reiterate that our level of deference will depend on 

whether the BIA publishes its decision.”). When the BIA 

does not publish its decision, we accord it deference pursuant 

to Skidmore v. Swift & Co., 323 U.S. 134 (1944), which 

“entitl[es] the interpretation ‘to a respect proportional to its 

power to persuade.’” Choin v. Mukasey, 537 F.3d 1116, 

1120 (9th Cir. 2008) (quoting Garcia-Quintero, 455 F.3d 

at 1014).
12 ROUTE V. GARLAND

There are limited circumstances in which the BIA’s 

unpublished decisions are entitled to Chevron deference. 

Where the BIA has interpreted a term in the INA in a 

precedential decision, “we apply Chevron deference 

regardless of whether the order under review is the 

precedential decision itself or a subsequent unpublished 

order that relies upon it.” Marmolejo-Campos, 558 F.3d at 

911. Such an unpublished decision is eligible for Chevron

deference when it is “directly controlled by a published 

decision interpreting the same statute.” Uppal, 605 F.3d 

at 714; see also Garcia-Quintero, 455 F.3d at 1014 

(requiring the published decision “address[] the precise 

question at issue”); Marmolejo-Campos, 558 F.3d at 911 

(requiring that the published decision “address[] the 

dispositive question of statutory interpretation”). 

Unpublished BIA decisions must satisfy this standard to be 

accorded Chevron deference.

In Saldivar v. Sessions, 877 F.3d 812 (9th Cir. 2017), we 

rejected the Government’s argument that we should defer to 

a rule enunciated in an unpublished BIA decision that relied 

on In re Blancas-Lara, 23 I. & N. Dec. 458 (BIA 2002), a 

published decision that was not directly on point. Saldivar, 

877 F.3d at 815 n.3. Blancas-Lara decided that a “period of 

[lawful] residence after [an individual’s] admission as a 

nonimmigrant . . . may be considered in calculating the 

period of continuous residence for purposes” of cancellation 

of removal. Blancas-Lara, 23 I. & N. Dec. at 459. The 

petitioner in Saldivar had instead been “‘waved through 

inspection’ by an officer,” Saldivar, 877 F.3d at 813. 

Blancas-Lara, we concluded, was a narrow decision that was 

confined to a holding “that Congress ‘intended . . . to 

include’ and did include ‘admissions of nonimmigrants’ in 

[the cancellation of removal] provision.” Id. at 815 n.3 

(quoting Blancas-Lara, 23 I. & N. Dec. at 459–60). 
ROUTE V. GARLAND 13

Blancas-Lara “did not address [Saldivar’s] situation . . . , in 

which an alien was lawfully admitted in an unlawful status.” 

Id. Thus, we did not defer to the BIA’s unpublished 

decision, even though that decision recited language from a 

published decision because the unpublished decision applied 

a different rule than the one announced in the published 

decision.

Similarly, in Velazquez-Herrera v. Gonzales, 466 F.3d 

781 (9th Cir. 2006) (per curiam), we declined to defer to an 

unpublished BIA decision that purportedly relied on In re 

Rodriguez-Rodriguez, 22 I. & N. Dec. 991 (BIA 1999), a 

published decision. Velazquez-Herrera, 466 F.3d at 783. In 

Rodriguez-Rodriguez, the BIA had to decide whether a 

Texas crime “constitute[d] sexual abuse of a minor or a 

crime of violence” pursuant to the INA. RodriguezRodriguez, 22 I. & N. Dec. at 991–92 (emphasis added). 

Although it was not directly relevant to its holding, the BIA 

noted in a parenthetical that Black’s Law Dictionary 

“defin[es] child abuse as ‘[a]ny form of cruelty to a child’s 

physical, moral, or mental well-being.’” Id. at 996 

(emphasis added) (citation omitted). Then, in VelazquezHerrera, the question presented was what constituted “child 

abuse” pursuant to the INA; the BIA issued an unpublished 

decision using the definition of “child abuse” cited in 

Rodriguez-Rodriguez. Velazquez-Herrera, 466 F.3d at 782. 

We held that “neither the dictum in Rodriguez-Rodriguez nor 

the definition the BIA adopted in [its unpublished decision] 

constitutes a statutory interpretation that carries the force of 

law.” Id. at 783 (citations and internal quotation marks 

omitted). The BIA’s decision in Rodriguez-Rodriguez had 

not “address[ed] the dispositive question of statutory 

interpretation” that the BIA decided in its unpublished 

decision in Velazquez-Herrera. Marmolejo-Campos,

558 F.3d at 911.
14 ROUTE V. GARLAND

We recognize that using adjudication to interpret a 

statute is different from using notice-and-comment 

rulemaking. Notice-and-comment rulemaking results in a 

single, general document providing an interpretation of a 

statutory provision. Adjudication, in contrast, utilizes a 

case-by-case method of statutory interpretation. If an 

agency were forced to restrict its adjudication to the factual 

circumstances in that particular case only, it would be 

difficult for the agency to provide guidance for application 

of that same statute in future cases. As the Supreme Court 

has recognized, “[a]djudicated cases may and do, of course, 

serve as vehicles for the formulation of agency policies, 

which are applied and announced therein.” N.L.R.B. v. 

Wyman-Gordon Co., 394 U.S. 759, 765 (1969). Those 

policies announced in adjudications can and will apply to 

other adjudications with different facts. This is true in the 

immigration context, where “[i]t is well-established that 

Congress delegated to the BIA the authority to promulgate 

rules, on behalf of the Attorney General, that carry the force 

of law ‘through a process of case-by-case adjudication.’” 

Garcia-Quintero, 455 F.3d at 1012 (quoting INS v. AguirreAguirre, 526 U.S. 415, 425 (1999)).

The D.C. Circuit has stated that “[w]hen an agency 

[makes legal policy] by adjudication, because it is a 

policymaking institution unlike a court, its dicta can 

represent an articulation of its policy, to which it must adhere 

or adequately explain deviations.” Kidd Commc’ns v. 

F.C.C., 427 F.3d 1, 5 (D.C. Cir. 2005). We agree with the 

D.C. Circuit that agency “dicta can represent an articulation 

of its policy,” id. (emphasis added), but it is not always the 

case that agency dicta does represent an articulation of its 

policy that warrants deference. As Route correctly 

recognizes, “[a]llowing all parts of published decisions 

issued by the BIA to be eligible for Chevron deference 
ROUTE V. GARLAND 15

would permit the BIA to insert a broad range of unrelated or 

unreasoned policy decisions into published opinions for the 

purpose of making them binding in future unpublished 

cases.”

As with judicial opinions, “[t]he line is not always easy 

to draw” when deciding whether language in an agency 

adjudication is a binding rule or unnecessary dictum. 

Cetacean Cmty. v. Bush, 386 F.3d 1169, 1173 (9th Cir. 

2004). We have noted that for the purposes of our court’s 

opinions, “where a panel confronts an issue germane to the 

eventual resolution of the case, and resolves it after reasoned 

consideration in a published opinion, that ruling becomes the 

law of the circuit, regardless of whether doing so is 

necessary in some strict logical sense.” Id. (citation and 

internal quotation marks omitted).

We apply the same principle to the BIA’s published 

opinions. When the BIA “confronts an issue germane to the 

eventual resolution of the case, and resolves it after a 

reasoned consideration in a published” decision, id., 

resolution of that particular issue is eligible for Chevron

deference, including when the BIA relies on that reasoning 

in an unpublished decision. This guidance accords with our 

decisions in Saldivar and Velazquez-Herrera. In Saldivar, 

the BIA intended that its interpretation of the cancellation of 

removal provision be confined to the unique factual 

circumstances of that case concerning admission as a 

nonimmigrant. Thus, whether the clock for the cancellation 

of removal provision applied to someone who was “waved 

through inspection” and “lawfully admitted in an unlawful 

status,” Saldivar, 877 F.3d at 813, 815 n.3, was not “germane 

to the eventual resolution of the case,” Cetacean Cmty., 

386 F.3d at 1173. And in Velazquez-Herrera, the BIA’s 

earlier notation of how Black’s Law Dictionary defined 
16 ROUTE V. GARLAND

“child abuse” was neither germane to the BIA’s published 

decision nor reasoned in the sense that the BIA did nothing 

other than use a mere parenthetical quotation. See 

Velazquez-Herrera, 466 F.3d at 783.

In contrast, when we apply this principle to Route’s case, 

we conclude that the BIA’s published decision in Alyazji did 

interpret the phrase “the date of admission” in 

§ 1227(a)(2)(A)(i)(I), even for situations that do not involve 

an individual’s adjustment of status. In Alyazji, the BIA set 

forth a bright-line rule: “the phrase ‘the date of admission’ 

refers to the date of the admission by virtue of which the 

alien was present in the United States when he committed 

his crime.” Alyazji, 25 I. & N. Dec. at 406. Although 

Alyazji’s circumstances involved an adjustment of status, 

the BIA did not limit this interpretation of 

§ 1227(a)(2)(A)(i)(I) to adjustments of status. The BIA 

could have decided Alyazji without giving a general 

interpretation of § 1227(a)(2)(A)(i)(I) by confining its ruling 

to situations involving adjustments of status. Instead, the 

BIA interpreted § 1227(a)(2)(A)(i)(I) for a multitude of 

situations, presumably to provide guidance to IJs and the 

BIA in future cases, like this one. As further proof of the 

general nature of this interpretation, the BIA applied its new 

interpretation to a hypothetical scenario that did not involve 

an adjustment of status. See Alyazji, 25 I. & N. Dec. at 407–

08.

Contrary to Route’s assertions, the BIA’s interpretation 

was not “made casually and without analysis” or “uttered in 

passing without due consideration of the alternatives.” 

United States v. Johnson, 256 F.3d 895, 915 (9th Cir. 2001). 

Instead, the BIA in Alyazji “confront[ed]” the interpretation 

of § 1227(a)(2)(A)(i)(I). Cetacean Cmty., 36 F.3d at 1173. 

That issue was “germane to the eventual resolution of the 
ROUTE V. GARLAND 17

case.” Id. And the BIA “resolve[d that issue] after reasoned 

consideration in a published opinion.” Id.

The BIA subsequently adhered to Alyazji’s interpretation 

of § 1227(a)(2)(A)(i)(I) in its unpublished decision in this 

case, quoting directly from Alyazji and applying the 

interpretation to Route’s circumstances. Thus, the BIA’s 

“unpublished decision [is] directly controlled by” Alyazji, “a 

published decision interpreting the same statute.” Uppal, 

605 F.3d at 714. Accordingly, we conclude that Alyazji, and 

its application in the unpublished BIA decision in this case, 

meet the requirements of Mead. See id.

IV. Chevron Step One

At step one of the Chevron analysis, we ask “whether 

Congress has directly spoken to the precise question at issue. 

If the intent of Congress is clear, that is the end of the matter; 

for the court, as well as the agency, must give effect to the 

unambiguously expressed intent of Congress.” Chevron, 

467 U.S. at 842–43.

We previously interpreted a portion of 

§ 1227(a)(2)(A)(i)(I) in Shivaraman. There, the petitioner 

entered the United States in 1989 on a nonimmigrant visa. 

Shivaraman, 360 F.3d at 1143. In 1997, Shivaraman 

adjusted his status to LPR, and in 2000, he was convicted of 

a crime in Hawai‘i. Id. The IJ and BIA both decided that 

the 1997 adjustment of status was the relevant “admission”

for the purposes of § 1227(a)(2)(A)(i)(I). Id. at 1144–45.

We reversed the BIA and held “that both the plain words 

of the statute and the intent of Congress is clear: the ‘date of 

admission’ for the purposes of § [1227(a)(2)(A)(i)], is the 

date of the alien’s lawful entry.” Id. at 1146. Thus, in 

accordance with the BIA’s later ruling in Alyazji, we 
18 ROUTE V. GARLAND

concluded that an adjustment of status was not an 

“admission” for the purposes of § 1227(a)(2)(A)(i)(I). Id.

With respect to the phrase “the date of admission,” we 

wrote that “[t]he provision makes it clear that it is ‘the date’ 

of lawful entry after inspection and authorization that 

triggers the five-year period under the pertinent provision of 

the statute. There can be only one ‘the’ date.” Id. at 1148 

(citation omitted) (emphasis in original). Thus, “[w]here the 

alien legally enters the U.S. after inspection and 

authorization and remains in a lawful status thereafter, the 

date of his lawful entry is ‘the’ date of his admission, as that 

term is defined in the statute.” Id. at 1148–49. What we did 

not answer in Shivaraman, however, was which date 

constitutes the date when an individual has multiple 

admissions preceding a conviction for a CIMT.

The plain text of § 1227(a)(2)(A)(i)(I) does not answer 

this question. The statute makes no attempt to distinguish 

which admission is the relevant one when there are multiple 

admissions. “To maintain the proper separation of powers 

between Congress and the executive branch, we must 

‘exhaust all the traditional tools of construction’ before we 

‘wave the ambiguity flag.’” Medina Tovar v. Zuchowski, 

982 F.3d 631, 634 (9th Cir. 2020) (quoting Kisor v. Wilkie, 

139 S. Ct. 2400, 2415 (2019)). For example, “[a] provision 

that may seem ambiguous in isolation is often clarified by 

the remainder of the statutory scheme.” United Sav. Ass’n 

of Tex. v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 

365, 371 (1988). But even those other tools of statutory 

construction do not resolve the ambiguity about which date 

is “the date of admission.” Other provisions of the INA do 

not specify which admission should govern application of 

§ 1227(a)(2)(A)(i)(I). The INA provides a definition of 

“admission,” see 8 U.S.C. § 1101(a)(13)(A), but that 
ROUTE V. GARLAND 19

definition does not provide guidance as to which admission 

is the pertinent one when there are multiple admissions.3 

Even with our traditional tools of statutory interpretation, we 

cannot discern clear guidance from Congress as to which 

date of admission is the relevant one.

Thus, we join the Fourth Circuit in holding that “[t]he 

INA is silent as to which admission should be used in 

determining an alien’s removability under 

[§ 1227(a)(2)(A)(i)] in the event an alien has multiple 

admissions.” Sijapati v. Boente, 848 F.3d 210, 216 (4th Cir. 

2017). “[T]he phrase ‘the date of admission’ is ambiguous.” 

Id.; see also Alyazji, 25 I. & N. Dec. at 400 (“The statutory 

language does not specify which of an alien’s various 

admissions should be considered, and thus we find the 

statute to be ambiguous in that regard.”). Having concluded 

that Congress has not “directly spoken to the precise 

question at issue,” Chevron, 467 U.S. at 842, we proceed to 

the second step of the Chevron analysis.

3 We note that we have cautioned against mechanically applying the 

§ 1101(a)(13)(A) definition of “admission” to every provision in the 

INA. “Although we have said that § 1101(a)(13)(A) provides the 

primary, controlling definition of ‘admitted,’ we similarly have 

embrace[d] an alternative construction of the term when the statutory 

context so dictates.” Ramirez v. Brown, 852 F.3d 954, 961 (9th Cir. 

2017) (citation and some internal quotation marks omitted) (alteration in 

original). Specifically, the BIA has held that adjustment of status can 

constitute an “admission,” Alyazji, 25 I. & N. Dec. at 399–404, and we 

have agreed with that conclusion, see Shivaraman, 360 F.3d at 1146–47. 

However, we have declined to adopt a reading that “any event that 

qualifies as an admission under this definition can serve as the date of 

admission for the purposes of” § 1227(a)(2)(A)(i). Id. (emphases and 

internal quotation marks omitted).
20 ROUTE V. GARLAND

V. Chevron Step Two

“[I]f the statute is silent or ambiguous with respect to the 

specific issue, the question for the court is whether the 

agency’s answer is based on a permissible construction of 

the statute.” Chevron, 467 U.S. at 843. We “need not 

conclude that the agency construction was the only one it 

permissibly could have adopted to uphold the construction, 

or even the reading the court would have reached if the 

question initially had arisen in a judicial proceeding.” Id. at 

843 n.11. The agency’s interpretation of the ambiguous 

statute is to be “given controlling weight unless [it is] 

arbitrary, capricious, or manifestly contrary to the statute.” 

Id. at 844. We “may not substitute [our] own construction 

of a statutory provision for a reasonable interpretation made 

by the administrator of an agency.” Id. Instead, “[w]e must 

accept the BIA’s construction if it is reasonable.” Pirir-Boc 

v. Holder, 750 F.3d 1077, 1081 (9th Cir. 2014). Our inquiry 

for a Chevron step two analysis is further guided by the 

subject matter of this case. “Judicial deference in the 

immigration context is of special importance, for executive 

officials exercise especially sensitive political functions that 

implicate questions of foreign relations.” Negusie v. Holder, 

555 U.S. 511, 517 (2009) (citation and internal quotation 

marks omitted).

We hold that the BIA’s interpretation of 

§ 1227(a)(2)(A)(i)(I) in Alyazji is reasonable. Faced with an 

ambiguity about which of multiple admissions would 

constitute “the date of admission,” the BIA employed a 

number of traditional tools of statutory interpretation. For 

example, the BIA considered the basic purpose of § 1227(a), 

which is to remove individuals who are “in and admitted to 

the United States.” Alyazji, 25 I. & N. Dec. at 406 (quoting 

8 U.S.C. § 1227(a)). An individual is “in and admitted to the 
ROUTE V. GARLAND 21

United States” when he or she is “present in the United 

States pursuant to an admission.” Id. From this structure of 

§ 1227(a), the BIA held that the provision “is focused on 

admission plus presence.” Id. That conclusion is reasonable

in light of Congress’s decision to apply the removability 

grounds in § 1227(a) to those individuals who are “in and 

admitted to the United States.”

Additionally, the BIA considered alternative 

interpretations of § 1227(a)(2)(A)(i)(I), including one 

advanced by DHS where “admission would be construed in 

accordance with [§ 1101(a)(13)(A)] except where 

vindication of the legislative purpose and the avoidance of 

absurd results dictates a broader reading.” Id. at 403. As 

noted above, the BIA sought to avoid an interpretation that 

would be “customized to meet each new context,” and would 

“introduce unpredictability and incoherence to the law.” Id.

at 404. The BIA’s adoption of a bright-line rule accords with 

our decision in Shivaraman, where we warned that the BIA 

should not “establish[] a regime where an IJ may pick and 

choose, without guidance, and at his apparent whim, among 

several dates of ‘admission’ for purposes of determining 

removability under” § 1227(a)(2)(A)(i). Shivaraman, 

360 F.3d at 1147; see also id. (faulting the BIA for creating 

a rule that “allows for an IJ’s exercise of unbounded 

discretion with disparate effects and drastic immigration 

consequences”).

The BIA also rejected an interpretation that would 

always focus on the first date of admission, as such an 

interpretation “is not reconcilable with the language and 

purpose of the statute and would lead to ‘peculiar 

consequences’ when applied to aliens who were briefly 

admitted many years ago (such as tourists, perhaps) and who 

remained outside the United States for decades thereafter 
22 ROUTE V. GARLAND

before being readmitted.” Alyazji, 25 I. & N. Dec. at 406 n.6 

(quoting Shanu, 23 I. & N. Dec. at 761).

Finally, the BIA considered changes to the statutory 

language, its own precedent, and precedent from United 

States Courts of Appeals, including our own. See id. at 399–

406 (citing Shivaraman, 360 F.3d 1142). Using such 

background tools to interpret an ambiguous statute is neither 

arbitrary nor capricious. It is the very same tools we would 

employ were we to interpret § 1227(a)(2)(A)(i)(I) on a blank 

slate. Taken together, the BIA’s interpretation is “a 

permissible construction of the statute.” Chevron, 467 U.S. 

at 843.

Route argues that if a nonimmigrant “makes a brief trip 

outside the United States and returns for the purpose of 

resuming a lawful period of residence that resulted directly 

from the first admission, then the five-year clock should not 

be reset by the subsequent admission.” The Alyazji

interpretation of § 1227(a)(2)(A)(i)(I) does reset the clock 

each time an individual physically leaves the United States 

and reenters as a nonimmigrant, even if that trip abroad is 

very brief. See Sijapati, 848 F.3d at 218. “By contrast, the 

INA allows lawful permanent residents to make brief trips 

abroad without resetting their date of admission.” Id. (citing 

8 U.S.C. § 1101(a)(13)(C)(ii)). While the Alyazji

interpretation subjects nonimmigrants to harsher 

immigration consequences than LPRs, we have previously 

noted “Congress’s well-established policy of affording 

aliens with legal permanent resident status more benefits 

than non-permanent residents under the INA.” CuevasGaspar v. Gonzales, 430 F.3d 1013, 1028 (9th Cir. 2005), 

abrogated on other grounds by Holder v. Martinez 

Gutierrez, 566 U.S. 583 (2012); see also Sijapati, 848 F.3d 

at 218; Moore v. Ashcroft, 251 F.3d 919, 925 (11th Cir. 
ROUTE V. GARLAND 23

2001). That the BIA would interpret an ambiguous statutory 

provision to subject nonimmigrants to the consequences of 

§ 1227(a)(2)(A)(i), even if traveling for only a brief period, 

accords with that general congressional policy. The BIA’s 

interpretation reflects “a reasonable policy decision” by 

Congress. Sijapati, 848 F.3d at 218.

Route’s proposed interpretation of § 1227(a)(2)(A)(i)(I) 

would focus on an individual’s ties to the United States and 

the length of his or her trip abroad. That interpretation might 

also be a reasonable one, but we do not compare multiple 

interpretations to decide which is the fairest. Instead, the 

focus at step two of the Chevron analysis is whether the 

BIA’s interpretation is “a permissible construction of the 

statute.” Chevron, 467 U.S. at 843. Based on the analysis 

in Alyazji, interpreting the “the date of admission” language 

in § 1227(a)(2)(A)(i)(I) to mean “the date of the admission 

by virtue of which the alien was present in the United States 

when he committed his crime” is reasonable. Alyazji, 25 I. 

& N. Dec. at 406.

Route also argues that “[t]he BIA failed to properly 

apply Alyazji to [his] case.” “[T]he BIA’s failure to properly 

apply” its own binding precedent can “take[ an] unpublished 

order well beyond the bounds of both Chevron and 

Skidmore.” Barrera-Lima v. Sessions, 901 F.3d 1108, 1117 

(9th Cir. 2018). In contrast, when the BIA applies its own 

precedent reasonably, it can meet the requirements of 

Chevron’s second step. Cf. Henriquez-Rivas v. Holder, 

707 F.3d 1081, 1089 (9th Cir. 2013).

The BIA’s unpublished decision in this case reasonably 

applied the rule from Alyazji. The BIA noted in Alyazji that 

a long-ago admission that is “untethered to [an individual’s] 

presence in the United States when the crime involving 

moral turpitude was committed” would not be the relevant 
24 ROUTE V. GARLAND

date of admission. Alyazji, 25 I. & N. Dec. at 406 n.6. To 

Route, “[t]he logical corollary is that when two admissions 

are related in purpose and presence in the United States is 

not abandoned, the first admission is tethered to the second 

and, thus, the first admission governs the § 1227 analysis.”

Route misreads Alyazji. The BIA wanted to ensure that 

the relevant admission is the one that led to the individual’s 

physical presence in the United States when he or she 

committed the CIMT. A previous admission is “untethered 

to [an individual’s] presence in the United States” when that 

person subsequently left the country. See id. Route did just 

that. Although Route was admitted in 2005, he subsequently 

left the country and was again admitted in 2015. Per Alyazji, 

it is the 2005 admission that is “untethered” to Route’s 

presence during which he committed a CIMT. Route’s 2015 

admission is “the admission by virtue of which [Route] was 

present in the United States when he committed his crime.” 

Id. at 406. As we stated in Shivaraman, “[w]here the alien 

legally enters the U.S. after inspection and authorization and 

remains in a lawful status thereafter, the date of his lawful 

entry is ‘the’ date of his admission, as that term is defined in 

the statute.” 360 F.3d at 1148–49. Route legally entered the 

United States in 2015 after being inspected. He remained in 

the lawful status of nonimmigrant thereafter. That date of 

his lawful entry—2015—is the date of admission.

Additionally, the BIA’s application of Alyazji here 

accorded with the hypothetical scenario that the agency gave 

in Alyazji itself, where two admissions resulted in the more 

recent admission being relevant for § 1227(a)(2)(A)(i)(I) 

clock. See Alyazji, 25 I. & N. Dec. at 407–08. Although the 

BIA’s hypothetical involved two admissions separated by an 

eight-year absence, the BIA’s focus was on which admission 

allowed the individual to enter the United States and commit 
ROUTE V. GARLAND 25

a CIMT. See id. The BIA applied the same rule to Route’s 

circumstances, so its application of Alyazji to its unpublished 

decision here was reasonable.

Thus, the BIA, both in its original interpretation of 

§ 1227(a)(2)(A)(i)(I) in Alyazji and in its application to 

Route’s case, is to be “given controlling weight” because it 

is not “arbitrary, capricious, or manifestly contrary to the 

statute.” Chevron, 467 U.S. at 844. We defer to the BIA 

and hold that Route was removable pursuant to 

§ 1227(a)(2)(A)(i).

VI. US-FSM COFA

Finally, Route argues that the Alyazji interpretation of 

§ 1227(a)(2)(A)(i)(I) “would not provide for ‘free 

association,’ because [a] FSM citizen would constantly be 

subject to a forever renewable period to gauge their moral 

character regardless of their actual presence in the United 

States.”

Micronesian citizens can enter, reside in, and work in the 

United States without visa approval or labor certification. 

See US-FSM COFA § 141(a). Even so, a Micronesian 

citizen’s time spent in the United States as a nonimmigrant 

“does not confer on” that person “the right to establish the 

residency necessary for naturalization,” though the 

individual can become a LPR or citizen through other paths. 

Id. § 141(h). Additionally, the US-FSM COFA provides that 

the INA “shall apply to any person admitted or seeking 

admission to the United States . . . , and nothing in the 

Compact . . . shall be construed to limit, preclude, or modify 

the applicability of, with respect to such person . . . any 

ground of inadmissibility or deportability under” the INA. 

Id. § 141(f)(1). The US-FSM COFA provides specific and 
26 ROUTE V. GARLAND

narrow exemptions from the INA for Micronesian citizens. 

See id.

In interpreting the United States’ COFA with the 

Republic of Palau, we held that that COFA “exempts” 

Palauans “only from . . . specifically enumerated 

subsections” of the INA “and that it does not provide an 

exemption” not listed therein. United States v. Terrence, 

132 F.3d 1291, 1294 (9th Cir. 1997). Pursuant to the 

doctrine of “‘inclusio unius est exclusio alterius’ (the 

inclusion of one is the exclusion of the other),” the mention 

of only specific exemptions means that “the requirements of 

all other provisions of immigration law remain applicable.” 

Id. Route concedes that the text of the US-FSM COFA does 

not “exempt[ him] from § 1227(a)(2)(A)(i) or any other 

provision of the immigration laws.”

Instead, Route “argues that the COFA helps provide the 

statutory context and flexibility within which to interpret the 

phrase ‘the date of admission’ to comport with congressional 

intent.” Route’s contention is that the general spirit of the 

US-FSM COFA—creating a special relationship between 

our two nations—should change how the BIA and our court 

interpret § 1227(a)(2)(A)(i)(I) when applied to Micronesian 

citizens.

The text of the US-FSM COFA is clear. Micronesian 

citizens are subject to the removability grounds in § 1227(a). 

Interpreting that provision differently for Micronesian 

citizens would create two interpretations of the same statute. 

As the BIA noted, “[a]s a rule, a single statutory term should 

be interpreted consistently.” Alyazji, 25 I. & N. Dec. at 404 

(citing Clark v. Martinez, 543 U.S. 371, 382 (2005)). The 

President negotiated, and Congress approved, a 

comprehensive scheme governing our relationship with the 

Federated States of Micronesia. That scheme included 
ROUTE V. GARLAND 27

application of § 1227(a)(2)(A)(i) to Micronesian citizens 

who are admitted to the United States as nonimmigrants, see

US-FSM COFA § 141, the same § 1227(a)(2)(A)(i) that is 

applied to citizens of other nations. We apply both the INA 

and US-FSM COFA consistently with the text of those 

enactments and defer to the BIA’s permissible interpretation 

of the former.

* * *

We acknowledge that the Alyazji interpretation of 

§ 1227(a)(2)(A)(i)(I) results in serious consequences when 

applied to Route. As a Micronesian citizen, Route had less 

incentive to apply to become a legal permanent resident or 

naturalize as a United States citizen. Unlike nonimmigrants 

from some other countries, Route could leave and enter the 

United States at will without a visa and continue to work in 

the United States without prior authorization. Route built a 

life in this country, raising five children who are citizens of 

the United States. Being removed from the United States, a 

place Route has called home since 2005, is undoubtedly 

difficult for Route and his family. However, Route never 

applied to be a LPR, and he does not enjoy the privileges that 

accompany that status. See 8 U.S.C. § 1101(a)(13)(C).

It is possible that the BIA could have produced a 

different interpretation of § 1227(a)(2)(A)(i)(I), one that was 

still permissible pursuant to Chevron but more flexible when 

applied to nonimmigrants like Route. And Congress, of 

course, could resolve the ambiguity in § 1227(a)(2)(A)(i)(I) 

by adopting Route’s proposal of focusing on an individual’s 

ties to the United States.

But the BIA did not interpret § 1227(a)(2)(A)(i)(I) in 

such a way, and Congress has not adopted language 

mirroring Route’s proposal. As members of the judicial 
28 ROUTE V. GARLAND

branch, we cannot impose a different interpretation by fiat 

when the Supreme Court instructs us to defer to an agency’s 

reasonable interpretation of ambiguous statutory language. 

See Chevron, 467 U.S. at 843–44. We also cannot augment 

application of § 1227(a)(2)(A)(i)(I) because a particular 

petitioner has longstanding ties to the United States. When

applying a statute enacted by the legislative branch and 

interpreted by the executive branch, we sit as a court of law, 

not of equity. So long as an individual commits a crime that 

meets the criteria of § 1227(a)(2)(A)(i), that individual is 

subject to removal. Route was admitted to the United States 

in 2015 and committed a crime involving moral turpitude in 

2018. Consequently, he is removable pursuant to 

§ 1227(a)(2)(A)(i) for having been “convicted of a crime 

involving moral turpitude committed within five years . . . 

after the date [his] admission.” Therefore, we affirm the BIA 

and deny the petition for review.

PETITION DENIED.