PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SHANU MUSILU AREMU, 

Petitioner,

v.  No. 05-1728

DEPARTMENT OF HOMELAND SECURITY,

Respondent. 

On Petition for Review of an Order

of the Board of Immigration Appeals.

(A74-932-039)

Argued: May 22, 2006

Decided: June 19, 2006

Before WILKINS, Chief Judge, and MOTZ and

KING, Circuit Judges.

Petition for review granted and order of removal vacated by published

opinion. Judge King wrote the opinion, in which Chief Judge Wilkins

and Judge Motz joined. 

COUNSEL

ARGUED: Theresa Isidore Obot, Baltimore, Maryland, for Petitioner. Song E. Park, UNITED STATES DEPARTMENT OF JUSTICE, Office of Immigration Litigation, Civil Division, Washington,

D.C., for Respondent. ON BRIEF: Theo I. Ogune, LAW OFFICE

OF THERESA I. OBOT, Baltimore, Maryland, for Petitioner. Peter

D. Keisler, Assistant Attorney General, M. Jocelyn Lopez Wright,
Assistant Director, UNITED STATES DEPARTMENT OF JUSTICE, Office of Immigration Litigation, Civil Division, Washington,

D.C., for Respondent. 

OPINION

KING, Circuit Judge: 

Musilu Aremu Shanu has filed a petition seeking review of the

June 6, 2005 decision of the Board of Immigration Appeals ("BIA")

ordering him removed from the United States pursuant to 8 U.S.C.

§ 1227(a)(2)(A)(i).1 Shanu’s primary contention on appeal is that the

BIA erroneously determined that the date on which he adjusted his

status to become a permanent resident qualifies as "the date of admission" within the meaning of § 1227(a)(2)(A)(i). As explained below,

we agree with Shanu that, in these circumstances, the date of adjustment of status does not qualify as "the date of admission" under that

provision. Accordingly, we grant Shanu’s petition for review and

vacate the BIA’s order of removal.

I.

On June 8, 1989, Shanu, a Nigerian citizen, was admitted to the

United States on a six-month visa as a nonimmigrant visitor for pleasure. When his visa expired in December 1989, Shanu failed to depart

the United States and did not seek an extension of his visa. He

remained in the United States illegally until December 20, 1996,

when, despite his illegal presence, the Immigration and Naturalization

Service ("INS") adjusted his status to that of a lawful permanent resident.2

 On July 16, 1998, Shanu was convicted of various fraud

1Although the style of this case, as presented by the parties, names the

petitioner as "Shanu Musilu Aremu," it appears from the record that his

correct name is "Musilu Aremu Shanu," as indicated in the BIA’s decision on review as well as various documents submitted in the agency

proceedings. In this opinion, we thus refer to the petitioner as "Shanu."

2The INS was abolished in 2002, and its enforcement functions were

transferred to the Department of Homeland Security. See Homeland

Security Act of 2002, Pub. L. No. 107-296, § 441, 116 Stat. 2135, 2192

(2002). For the sake of simplicity, we refer to the immigration enforcement authorities as the "INS." 

2 AREMU v. DEP’T OF HOMELAND SECURITY
offenses, which he committed on June 13, 1997. On the basis of these

convictions, the INS charged Shanu, on November 15, 2000, with

removability under 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 (or 10 years in

the case of an alien provided lawful permanent resident status under section 1255(j) of this title) 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.

On August 29, 2001, the INS moved to withdraw its removability

charge against Shanu, based on its view that "the date of admission"

for purposes of § 1227(a)(2)(A)(i) was the date on which Shanu was

initially admitted to the United States as a nonimmigrant visitor —

June 8, 1989. Because Shanu’s fraud offenses (committed on June 13,

1997) occurred more than five years after June 8, 1989, they could not

form the basis for removability under the INS’s reading of § 1227(a)

(2)(A)(i). 

Three months later, however, on December 6, 2001, the INS sought

to withdraw its motion to withdraw the charges against Shanu. Its

change of heart was driven by a new interpretation of

§ 1227(a)(2)(A)(i). Under its new interpretation, the INS construed

"the date of admission" to include not only the date on which Shanu

was initially admitted to the United States, but also the date on which

Shanu adjusted status to become a permanent resident — December

20, 1996. Because Shanu committed his fraud offenses within five

years of the date he adjusted status, the INS asserted that he was properly removable under § 1227(a)(2)(A)(i).

The immigration judge (the "IJ") agreed with the new position of

the INS and, at a January 22, 2003 hearing, he ordered Shanu

AREMU v. DEP’T OF HOMELAND SECURITY 3
removed under § 1227(a)(2)(A)(i).3

 Shanu timely appealed the

removal order to the BIA. On June 6, 2005, in a published decision,

the BIA affirmed the IJ’s removal order, holding that (1) the date of

adjustment of status qualifies as "the date of admission" under

§ 1227(a)(2)(A)(i), and that (2) where there is more than one potential

date of admission, any such date qualifies as "the date of admission"

under that provision. See In re Shanu, 23 I. & N. Dec. 754 (B.I.A. 2005).4

Shanu has timely filed a petition for review in this Court, and we possess jurisdiction pursuant to 8 U.S.C. § 1252(a)(5).

II.

The principles of Chevron U.S.A. Inc. v. Natural Res. Def. Council,

Inc., 467 U.S. 837 (1984), "apply to BIA interpretations of the statutes it administers." Soliman v. Gonzales, 419 F.3d 276, 281 (4th Cir.

2005). Under Chevron, where "Congress has directly spoken to the

precise question at issue," we are obliged to correct any agency interpretation that conflicts with Congress’s plainly expressed intent. 467

U.S. at 842. If, however, "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."

Id. at 843.

III.

Shanu’s primary contention on appeal is that the BIA erroneously

determined that the date on which he adjusted status (December 20,

1996) qualifies as "the date of admission" under 8 U.S.C.

§ 1227(a)(2)(A)(i). On this point, Shanu assigns error to two separate

legal conclusions made by the BIA in its opinion of June 6, 2005,

both of which were necessary to support its conclusion that the date

of Shanu’s adjustment of status constitutes "the date of admission,"

that is: (1) that the date of adjustment of status qualifies as "the date

3Shanu sought to file an application for cancellation of removal at the

January 22, 2003 hearing, but the IJ concluded that Shanu had waived

any right to cancellation of removal by failing to file his application

within a previously established deadline. 

4The BIA also affirmed the IJ’s decision that Shanu had waived any

right to cancellation of removal. 

4 AREMU v. DEP’T OF HOMELAND SECURITY
of admission" for purposes of § 1227(a)(2)(A)(i), and (2) that any

potential date of admission qualifies as "the date of admission" under

that provision.5

A.

Resolution of whether the date of Shanu’s adjustment of status constitutes "the date of admission" requires an inquiry into the nature of

an "admission" under the immigration laws. And, at first glance, it

appears that we need look no further than the definitional section

applicable to the Immigration and Nationality Act, which contains the

following provision: "The terms ‘admission’ and ‘admitted’ mean,

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

States after inspection and authorization by an immigration officer."

8 U.S.C. § 1101(a)(13)(A) (emphasis added). As the BIA acknowledged, an "adjustment of status does not conform" to this statutory

definition. Shanu, 23 I. & N. Dec. at 756. Adjustment of status is a

method of acquiring status as a permanent resident that is only available to those already within the United States. See 8 U.S.C. § 1255.

Thus, although the steps an immigrant must take to adjust status are

"arguably the equivalent of inspection and authorization by an immigration officer, . . . such a change in status can[not] be characterized

as an ‘entry’ into the United States." In re Rosas-Ramirez, 22 I. & N.

Dec. 616, 617-18 (B.I.A. 1999). 

Because the statutory definition of "admission" does not include

adjustment of status, it appears that a straightforward application of

Chevron requires us to conclude that the BIA’s determination that

"the date of admission" under § 1227(a)(2)(A)(i) includes the date of

an adjustment of status fails step one of the Chevron analysis. As the

Seventh Circuit astutely observed in a similar setting, the BIA essentially "decided to treat § 1101 as if it began . . . with the phrase

‘unless the context otherwise requires.’" Abdelquadar v. Gonzales,

413 F.3d 668, 673 (7th Cir. 2005). Such an administrative amendment

of a statute’s plain language is, of course, impermissible. Neverthe5Shanu also appeals the BIA’s ruling that he waived any right to cancellation of removal. As explained below, see infra note 7, our disposition of the "date of admission" issue renders moot Shanu’s cancellation

of removal claim. 

AREMU v. DEP’T OF HOMELAND SECURITY 5
less, the BIA, relying on statutory provisions other than

§ 1101(a)(13)(A), concluded that "§ 1101(a)(13)(A) does not provide

an exhaustive definition of the term ‘admission.’" Shanu, 23 I. & N.

Dec. at 756. None of its statutory references, however, is sufficient to

overcome the plain fact that the statutory definition of "admission"

does not include adjustment of status.

B.

Most prominently, the BIA relied on 8 U.S.C. § 1101(a)(20), which

defines "lawfully admitted to permanent residence" as "the status of

having been lawfully accorded the privilege of residing permanently

in the United States as an immigrant." According to the BIA, the

phrasing of the defined term — "lawfully admitted to permanent residence" — indicates that Congress considers the bestowal of permanent resident status, whether abroad or through adjustment of status,

to be an "admission." See Shanu, 23 I. & N. Dec. at 756-57. Were it

not for the explicit definition of "admission" found in

§ 1101(a)(13)(A), we might be persuaded by the BIA’s reasoning. As

the Supreme Court has recognized, however, "a definition which

declares what a term ‘means’ excludes any meaning that is not

stated." Colautti v. Franklin, 439 U.S. 379, 392 n.10 (1979) (internal

quotation marks and alterations omitted); see also Meese v. Keene,

481 U.S. 465, 484 (1987) ("It is axiomatic that the statutory definition

of the term excludes unstated meanings of that term."). And as a necessary corollary to this principle, where Congress has used a statutorily defined term in a manner seemingly inconsistent with the term’s

statutory definition, an interpreting body is not entitled to adopt the

seemingly inconsistent use of the term in lieu of the term’s express

statutory definition. Cf. Colautti, 439 U.S. at 392 n.10. 

In further support of its conclusion that the date of Shanu’s adjustment of status constitutes "the date of admission," the BIA emphasized that one of the requirements for adjustment of status is that the

alien be "admissible." Shanu, 23 I. & N. Dec. at 757. Its reasoning

seems to be that because an alien must be admissible in order to

adjust status, adjustment of status qualifies as an "admission." This

analysis conflates and confuses "admission" with "admissibility." To

be sure, only an admissible alien can be admitted; but it does not follow that to require an alien to possess the qualifications labeled "ad6 AREMU v. DEP’T OF HOMELAND SECURITY
missibility," is to "admit" the alien. An "admissible" alien is simply

one who is eligible for admission. 

The BIA also relied on the parenthetical phrase found within

§ 1227(a)(2)(A)(i), which indicates that an alien who adjusts status

under 8 U.S.C. § 1255(j) (providing for adjustment for government

informants) is inadmissible if he has committed a crime involving

moral turpitude within ten years after "the date of admission." As the

BIA observed, that phrase has been construed by regulation to permit

the removal of an alien who has committed a crime involving moral

turpitude within ten years of adjusting status under § 1255(j). See

Shanu, 23 I. & N. Dec. at 758 (citing 8 C.F.R. § 245.11(h)). And as

the BIA correctly noted, because the regulation measures the ten

years from the date of adjustment, the regulation necessarily considers

the date of adjustment to be "the date of admission." From these

observations, the BIA reasoned that, because the parenthetical phrase

relating to a § 1255(j) adjustment shares the phrase "the date of

admission" with the body of § 1227(a)(2)(A)(i), the phrase "the date

of admission" must necessarily include the date of adjustment across

the board, not only in the limited circumstance of a § 1255(j) adjustment. The flaw in this analysis is the BIA’s reliance on a regulation

for its interpretation of the plain meaning of a statute. Our task is to

decide whether the BIA’s decision is "based on a permissible construction of the statute." See INS v. Aguirre-Aguirre, 526 U.S. 415,

424 (1999) (emphasis added) (internal quotation marks omitted). And

in performing that task, the regulation on which the BIA relies is entitled to no more deference than the BIA’s decision in this case. See

United States v. Mead Corp., 533 U.S. 218, 230 (2001) (observing

that Chevron principles apply equally to notice-and-comment rulemaking and formal adjudication). Put simply, the interpretation of

§ 1227(a)(2)(A)(i) reflected in the regulation is irrelevant to whether

the BIA’s interpretation of § 1227(a)(2)(A)(i) is permissible under

Chevron.

C.

In sum, we conclude, along with our sister circuits to have

addressed the issue, see Abdelquadar, 413 F.3d at 674; Shivaraman

v. Ashcroft, 360 F.3d 1142, 1146 (9th Cir. 2004), that the BIA impermissibly interpreted "the date of admission" in § 1227(a)(2)(A)(i) to

AREMU v. DEP’T OF HOMELAND SECURITY 7
include the date of December 20, 1996, on which Shanu’s status was

adjusted.6 In so ruling, however, we express no opinion on whether

adjustment of status may properly be considered "the date of admission" where the alien sought to be removed has never been "admitted"

within the meaning of § 1101(a)(13)(A). See Ocampo-Duran v. Ashcroft, 254 F.3d 1133, 1135 (9th Cir. 2001) (concluding that in such

circumstance date of adjustment qualifies as "date of admission");

Rosas-Ramirez, 22 I. & N. Dec. at 623 (same). In such a situation, a

conclusion that the date of adjustment of status qualifies as a "date of

admission" might be justified through application of the settled rule

that a court must, if possible, interpret statutes to avoid absurd results.

See Holland v. Big River Minerals Corp., 181 F.3d 597, 603 n.2 (4th

Cir. 1999) (observing that court may look beyond plain meaning of

statute where "a literal application of the statute would produce an

absurd result"). In this proceeding, however, there is a date that readily qualifies as a date of admission consistent with § 1101(a)(13)(A).

That date — June 8, 1989 (when Shanu was admitted as a nonimmigrant visitor) — thus constitutes "the date of [Shanu’s] admission"

under § 1227(a)(2)(A)(i). And because Shanu’s fraud offenses of June

13, 1997 (for which the INS seeks to deport him) occurred more than

five years later, Shanu is not removable under § 1227(a)(2)(A)(i).7

6We acknowledge that our ruling today may have the unfortunate

effect of rewarding an alien — such as Shanu — who has remained in

the United States beyond the authorized period and then adjusted status,

for if such an alien left the United States and obtained permanent resident

status abroad, his later authorized entry into the United States would

plainly qualify as an "admission" under § 1101(a)(13)(A) (although perhaps the date of that entry would not qualify as "the date of admission"

under § 1227(a)(2)(A)(i)). This result troubles us, and were we legislators we might seek to amend the governing statutes to avoid such a

result. As a court, however, we are obliged to give effect to the statutes

as they are written and enacted. See La. Pub. Serv. Comm’n v. FCC, 476

U.S. 355, 376 (1986) ("As we so often admonish, only Congress can

rewrite [a] statute."). 

7Because the date on which Shanu adjusted status does not qualify as

"the date of admission" under § 1227(a)(2)(A)(i), we need not reach

Shanu’s contention that the BIA erred in determining that any potential

date of admission qualifies as "the date of admission." Likewise, our conclusion that Shanu is not removable under § 1227(a)(2)(A)(i) renders

moot his claim regarding his application for cancellation of removal. 

8 AREMU v. DEP’T OF HOMELAND SECURITY
IV.

Pursuant to the foregoing, we grant Shanu’s petition for review,

and we vacate the BIA’s order of removal.

PETITION FOR REVIEW GRANTED AND

ORDER OF REMOVAL VACATED

AREMU v. DEP’T OF HOMELAND SECURITY 9