C ite as 27 I&N Dec. 194 (BIA 2018 ) Interim Decision #3913

194 

### Matter of Rosalina CASTILLO ANGULO

, Respondent

Decided January 29, 2018

U.S. Department of Justice Executive Office for Immigration Review Board of Immigration A ppeals

(1) In removal proceedings arising within the jurisdiction of the United States Courts of Appeals for the Fifth and Ninth Circuits, an alien who was “waved through” a port of entry has established an admission “in any status” within the meaning of section 240A(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a)(2) (2012).
Tula

- Rubio v. Lynch , 787 F.3d 288 (5th Cir. 2015)

, and Saldivar v . Sessions

, 877 F.3d
812 (9th Cir. 2017), followed in jurisdiction only.

(2) In removal proceedings arising outside the Fifth and Ninth Circuits, to establish continuous residence in the United States for 7 years after having been “admitted in any
status” un der section 240A(a)(2), an alien must prove that he or she possessed some form of lawful immigration status at the time of admission.

FOR RESPONDENT: Carlos A. Cruz

, E squire, Alhambra, California

FOR THE DEPARTMENT OF HOMELAND SECURITY : Jeannette V. Dever

, Associate Legal Advisor

BEFORE: Board Panel: GREER and O’CONNOR

, Board Members

. Concurring and Dissenting Opinion: PAULEY, Board Member.

O’CONNOR

, Board Member :

In a decision dated July 24, 2015, an Immigration Judge denied the respondent’s application for cancellation of removal under section 240A(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a) (2012). The respondent has appealed from that decisio n. The record will be remanded for further proceedings.



### I. FACT UAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Mexico who claims tha t she first
entered the United States in October 1991. I n April 2003 , s he adjusted status to that of a lawful permanent resident. On January 12, 2010, t he Department of Homeland Security (“ DHS ”) served the respondent with a n otice to a ppear, charging her with removability under section 212(a)(6)(E)(i) of the Act,

8 U.S.C. § 1182(a)(6)(E)(i) (20 06 ), for smuggling or attempting to smuggleC ite as 27 I&N Dec. 194 (BIA 2018 ) Interim Decision #3913

195 an alien into the country

. 1 T he respondent applied for cancellation of removal under section 240A(a) of the Act. The Immigration Judge pretermitted the respondent’s application

, concluding that s he di d not

establish that she “has resided in the United States continuous ly for 7 years after having been admitted in any status

, ” as required by s ection 240A(a)(2)

of the Act. The respondent claims that she presented herself for inspection in 1 998 and was waved through a port of entry by an immigration official. Relying

on Matter of Quilantan , 25 I&N Dec. 285 (BIA 2010), she argues that this entry constitutes an admission “ in any status ” under section 240A(a)(2) of

the Act and that she began to acc r u e continuous residence for pu rposes of

cancellation of removal after that date

. The Immigration Judge rejected the respondent’s argument, concluding

that Matter of Quilantan only applie s to applications for adjustment of

status under section 245(a) of the Act, 8 U.S.C. § 1255(a) (20 06 ) , so the respondent’s alleg ed “wave through” entry in 1998 was not an “ admission ” for purposes of section 240A(a)(2) of the Act. Based on this conclusion, the Immigration Judge found it unnecessar y to determine whether the respondent had any status at the time of her alleged entry. T he Immigration Judge further

determin ed that the respondent could not establish the continuous residence required by section 240A(a )(2)

, because her residence bega n to accru e when

she adjust ed her status in April 2003 , and i t was terminated under section 240A(d)(1) by service of the n otice to a ppear in January 2010, approximately

3 months short of the requisite 7

- year period

. During the pendency of the respondent’s appeal, we requested and received supplemental briefing from the parties and amici curiae. 2 The panel heard oral argument in this matter on March 22, 2017. 3

1 The respondent does not challenge either her treatment as an applicant for admission who is subject to the grounds of inadmissibility under section 212 (a) of the Act or her inadmissibility under section 212(a)(6)(E)(i) of the Act. See generally Matter of Guzman

Martinez , 25 I&N Dec. 845 (BIA 2 012) (concluding that a lawful permanent resident who has attempted to smuggle an alien into the country may be treated as an applicant for admission)

. 2 We acknowledge and appreciate the supplemental briefs filed by the parties and amici

curiae.

3 Following oral argument, Board Member Wendtland withdrew from the panel and was replaced by Board Member Greer, who has familiarized herself with the record of proceedings, including a transcript of the oral argument.C ite as 27 I&N Dec. 194 (BIA 2018 ) Interim Decision #3913

196 

### II. ANALYSIS

A. “ Wave Through ” Entry as an “Admission”

I n Matter of Quilantan , 25 I&N Dec. at 291

– 92, we held that the term “admission” in section 101(a)(13)(A) of the Act, 8 U.S.C. § 1101(a)(13)(A) (20 06 ) , requires procedural regularity

, rather than compliance with substantive legal requirements, and that a n alien who entered after she had

been “wave d through” a port of entry had been “ admi tted ” within the meaning of section 245(a) of the Act. Contrary to the Immigration Judge’s decision, we agree with the parties that our holding in Matter of Quilantan governs the definition of the term “ admitted” in section 240A(a)(2) of the

Act. We therefore conclude that t he respondent was “admitted” for purposes of section 240A(a)(2).

B. “Admitted in Any Status”

T he only remaining issue is whether a “wave through” entry, like the one

at issue in Quilantan , qualifies as an admission “in any status” within the meaning of section 240A(a)(2) of the Act. The respondent argues that the term “status” includes unlawful status and that the word “any” in that provision should be read broadly to include all aliens admitted to the United States, whether in lawful or unlawful status. In support of this contention

,
s h e relies on Tula

- Rubio v. Lynch , 787 F.3d 288 (5th Cir. 2015) , a decision

of the United States Court of Appeals for the Fifth Circuit

. After oral argument was heard in this case, the Ninth Circuit , in whose jurisdiction it arises, issued a decision agreeing with the Fifth Circuit. Saldivar v. Sessions

, 877 F.3d 812 (9th Cir. 2017)

. By contrast, t he DHS contend s that the phrase

“ admitt ed in any status” in section 240A(a)(2) requires an alien to show not only that he or she h as been admitted

, but also that the admission was attained by means of some lawful immigration status. T he Board has not issue d a published decision address ing whether the “wave through” entry of an alien who was not entitled to any lawful status constitutes an admission “in any

status.”

B oth parties argue that section 240A(a)(2) of the Act is unambiguous as

to whether a “wave through” entry constitutes an admi ssion “in any status

. ” See Chevron, U.S.A., Inc. v. Nat

. Res. Def. Council, Inc. (“ Chevron ”)

, 467 U.S. 837, 842

– 43 (1984). Having consider ed the statutory language and the various arguments in this case, we disagree and conclude that section 240A(a)(2) is ambiguous in this regard

. See Negusie v. Holder , 555 U.S. 511, 518 (2009) (finding a provision ambiguous where it was not “clear that Congress had an intention on the precise question at issue”); Nat’l R.R.C ite as 27 I&N Dec. 194 (BIA 2018 ) Interim Decision #3913

197 Passenger Corp. v. Atchison, Topeka & Santa Fe Ry. Co. , 470 U.S. 451, 473 n.27 (1985) ( no ting that words are “ambiguous” if they are “reasonably susceptible of different interpretations”). 4 We must therefore develop a reasonable interpretation of the provision, ta king into account the Act as a

whole. See K Mart Corp. v. Cartier, Inc. , 486 U.S. 281, 291 (1988);
Chevron , 467 U.S. at 843

– 44; Matter of Casillas

- Topete , 25 I&N Dec. 317, 320 (BIA 2010). In interpreting the appropriate meaning of section 240A(a)(2) of t he Act

, we consider it significant that the phrase “admitted in any status” differ s from

the wording of section 245(a) , which requires only that an alien b e “inspected

and admitted” and makes no mention of the alien’s “ status ” at admission. We generally presume that when Congress includes particular language in

one section of a statute and excludes it from another, it does so intentionally. See Keene Corp. v. United States , 508 U.S. 200, 208 (1993); Russello

v. United States , 46 4 U.S. 16, 23 (1983). The fact that Congress included the phrase “in any status” in section 240A(a)(2) of the Act but not in section 245(a) suggests that it intended to give the statutes different meanings

. We are further influenced by the longstanding principle that, if possible,

we should give effect to all parts of the statute. See Corley v. United States

, 556 U.S. 303, 314 (2009) ( stating that a “statute should be construed so that . . . no part will be inoperative or superfluous, void or insignificant” ( citation s omitted ) ) . Reading section 240A(a)(2) of the Act in the same way we do section 245(a)

— as requir ing only a procedurally regular “ admission ”

— would render the phrase “in any status” meaningless. If Congress had intended section 240A(a)(2) to require only that an alien be “inspected and

admitte d

, ” i t would have used the same language as section 245(a)

. Indeed, Judge Kozinski made this exact point in his dissent in Saldivar

, 877 F.3d at

4 We find it telling that both parties base their argument on conflicting views of what is purportedly unambiguous statutory language. Similarly, we note that 5 of the 15 judges

on the Fifth Circuit voted to rehear Tula

- Rubio en banc, and of those, 4 joined in a published decision dissenting from the denial of rehearing en banc. Tula Rubio v. Lynch

, 805 F.3d 185, 186−92 (5th Cir. 2015) (Jones, J., dissenting from the denial of rehearing en banc). We again find it telling that both the Fifth Circuit’s panel decision and the published

decision dissenting from the denial of rehearing en banc were based on conflicting views of what was deemed to be the unambiguous language of section 240A(a)(2) of the Act. Compare Tula

- Rubio , 787 F.3d at 293−95 & n n .4

− 5

, with Tula Rubio , 805 F.3d at 187 &
n.4, 1 92. Finally, we note that the Ninth Circuit’s decision in Saldivar contained a dissenting opinion that disagreed with the majority opinion’s interpretation of the “in any status” language and held that, to the extent “any doubt remains about the meaning o f status,” deference was owed to the agency’s interpretation. Saldivar , 877 F.3d at 820 (Kozinksi, J., dissenting). The fact that the words “in any status” have generated such sharp, conflicting views of what their plain meaning is by both judges and lit igants alike strongly suggests that the statutory language is far from unambiguous.C ite as 27 I&N Dec. 194 (BIA 2018 ) Interim Decision #3913

198 819 (Kozinski, J., dissenting) (“If Congress intended to grant eligibility for cancellation of removal to people who deceive the border authorities into admitting them, it would have put a period after ‘ admitted ’ in section [240A(a)(2) of the Act ] . . . .”)

. However, b y adding the phrase “in any

status” to section 240A(a)(2), Congress signaled that it intended to qualify the basic admission requirement of this provision

. We therefore conclude

that section 240A(a)(2) require s something more than a procedurally regular

“ admission. ” The legislative history of section 240A(a) of the Act, and its precursor, former section 212(c) of the Act, 8 U.S.C. § 1182(c) (199 4 ), provides valuable insight into congressional intent regarding the requirement that an

alien must be a dmi tted “in any status” to establish eligibility for relief

. See
United States v. Buckland , 289 F.3d 558, 565 (9th Cir. 2002) (en banc) (noting that wh ere Congress’ intent cannot be determined from a plain reading of the statute , the court should “look to the c ongressional intent

‘ revealed in the history and purposes of the statutory scheme ’ ” (citation omitted) )

. From the time of its enactment in 1952, relief under former section 212(c) w as restricted to aliens who entered the United States in some lawful

status. See, e.g.

, Madrid

- Tavarez v. INS , 999 F.2d 111, 112

– 13 (5th Cir. 1993) ( holding that an alien who entered the United States illegally and had no legal right to be in the country could not qualify for a section 212(c)

waiver ); Lok v. INS , 548 F.2d 37 , 41 (2d Cir. 1977) (concluding that section 212(c) relief require s an alien to have been lawfully domiciled for 7 years);

see also S. Rep. No. 81

- 1515, at 382

– 84 (1950) ( suggest ing that section 212(c) should include the word “lawful” to clarify that only aliens who had

entered the United States lawfully were eligible for relief ).
There is no indication that Congress intend ed to eliminate this “ lawful ”
entry requirement when it enacted the “residence” requ irement in section 240A(a) (2) of the Act , the purpose of which was to reconcile two conflicting interpretations of former section 212(c) regarding an applicant ’s “lawful unrelinquished domicile ” in this country. See Garcia

- Quintero v. Gonzales

, 455 F.3d 1006, 1016 (9th Cir. 2006) (noting that Congress enacted section 240A(a) of the Act “to clear up prior confusion and to strike a balance between the conflicting interpretations [of section 212(c)] ” (citation omitted)), abrogated on other grounds by Medina

- Nunez v. Lynch , 788 F.3d 1103 (9th Cir. 2015) ; see also Holder v. Martinez Gutierrez

, 566 U.S. 583

, 592

– 93 (2012)

. In any case

, under both interpretation s of former section 212(c)

, alien s were afforded relief only if they possess ed a lawful status when they entered the United States

. See, e.g.

, Castellon

- Contreras v. INS , 45 F.3d 149, 153 (7th Cir. 1995); Chiravacharadhikul v. INS , 645 F.2d 248, 250

– 51 (4th Cir. 1981).C ite as 27 I&N Dec. 194 (BIA 2018 ) Interim Decision #3913

199 Additionally, the legislative history of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996

, Division C of Pub. L. No.

104

- 208, 110 Stat. 3009

- 546

, indicates that even though Congress omi tt ed the word “lawfully” in section 240A(a)(2), it intended to limit eligibility for

relief to aliens who had been lawfully admitted in any status. See H.R. Rep.

No. 104

- 828, at 213 (1996) (Conf. Rep.) (indicating that section 240A(a) applied to lawful permanent resident s who ha d resided continuously in th is
country for 7 years after “being lawfully admitted in any status”); H.R. Rep.

No. 104

- 469, at 232 (1995) (same); see also S. Rep. No. 104

- 249, at 106, 125 (1996) (proposing changes to section 212(c) and a new section 244(a) of

the Act entitled “Can cellation of Deportation

, ” both of which limit ed relief

to aliens who ha d resided in the United States continuously for at least 7 years after being “lawfully admitted”).

Th is legislative history also indicates that at the time Congress was considering section 240A(a)(2)

, G overnment officials within the former Immigration and Naturalization Service (“INS”) interpreted th is provision as

be ing limited to aliens who were lawfully admitted. See Removal of Criminal and Illegal Aliens: Hearing Before the Subcomm. on Immigration and Claims of the H. Comm. on the Judiciary , 104th Cong. 14

– 15 (1995) (statement of T. Alexander Aleinikoff, Gen

. Counsel, INS) (discussing the proposal to limit eligibility for lawful permanent resident cancell ation of

removal to alien s who have “resided in the U.S. after lawful admission for

7 years” (emphasis added) ) ; Proposals to Reduce Illegal Immigration and Control Costs to Taxpayers: Hearing Before the S. Comm. on the Judiciary

, 104th Cong. 63 (1995) (s tatement of Hon. Doris Meissner, Comm ’ r, INS) (same). Thus, Congress only intended that alien s who possesse d lawful status upon admission w o uld be eligible for cancellation of removal

. Based on the foregoing, we conclude that the most natural reading of the phrase “admitted in any status” in section 240A(a)(2) of the Act is that the alien must have possessed some form of lawful status at the time of

admission that would allow him or her to enter into the United States as an immigrant or nonimmigrant. Thi s interpretation is consistent with our prior

decision in Matter of Blancas

, 23 I&N Dec. 458, 460 (BIA 2002)

, where we

held that the term “status” in section 240A(a)(2) “denotes someone who possesses a certain legal standing, e.g., classification as an imm igrant or nonimmigrant.” S ee also Saldivar

, 877 F.3d at 820 (Kozinski, J., dissenting) (“Limiting any status to legal status is not merely a plausible meaning, it is

the only plausible meaning.”); Tula Rubio v. Lynch , 805 F

. 3d 185, 187

– 88 (5th Cir. 2015) (Jones, J.

, dissenting from the denial of reh earin g en banc) (holding that the phrase “‘any status’ refers exclusively to the legal categories

enumerated in the [ A ct] and conferred upon aliens”). It is also consistent

with Matter of Quilantan

, 25 I&N Dec . at 293

, where we rejected the DHS’sC ite as 27 I&N Dec. 194 (BIA 2018 ) Interim Decision #3913

200 claim that section 245(a) of the Act requires an alien to have been admitted in a particular status

, largely because i t had offered no support for th at claim.

H owever, in this instance the wording of section 240A(a)(2) strongly suggests that an alien’s status upon admission is relevant to determining whether his or her entry started the 7

- year residenc e clock. Requiring an alien to have possessed a lawful status at the time of entry

als o prevents possible abuse of this form of relief. “Wave through” entries are by definition undocumented events. The respondent’s proposed interpretation of section 240A(a)(2) of the Act opens the door for all lawful permanent resident aliens who illegall y cross the border to claim, years after the fact, that they were “waved through” a port of entry and are therefore eligible for cancellation of removal based on a claim that is impossible

for the DHS to refute. See Saldivar

, 877 F.3d at 821 (Kozinski, J., dissenting) (noting that the majority’ s decision creates “perverse incentives” because “[o]bviously

, there would be no record contradicting [a n alien’s claimed

“ wave through ” ], so the incentive to lie would be powerful and the chance of
get ting caught nil”). The respondent’s view would essentially relieve alien s of the statutory burden of establishing that he or she has satisf ied all the eligibility require ments for cancellation of removal under section 240A(a) of

the Act. See section 240( c)(4)(A)(i) of the Act , 8 U.S.C. § 1229a(c)(4)(A)(i) (2012) ; see also 8 C.F.R. § 1240.8(d) (2017)

. It is unlikely that Congress

would have intended such a result

. We also disagree with the view of the Fifth and Ninth Circuits that an

alien can be admitted in an unlawful status. See Saldivar

, 877 F.3d at 816 ; Tula

- Rubio

, 787 F.3d at 29 3− 9 4 & n.5

. When an alien seeks admission at the border, an immigration official admit s the alien only upon a determination that he or she is lawfully entitled to ent e r the United States.

See section 212(a)(7) of the Act , 8 U.S.C. § 1182(a)(7) (2012) (r ender ing inadmissible those aliens who are not in possession of valid entry documents at the time they seek admission ); section 235(b)(1)(A) of the Act , 8 U.S.C. § 1225(b)(1)(A) (2012) ( providi ng that an immigration officer may order the expedited removal of an arriving alien who lacks valid entry documents); see also section 235(a)(3) of the Act (requiring all applicants for admission to be inspected). Because it is precisely the nature of the alien’s status that determines whether he or she is entitled to admission, we cannot agree with

the conclu sion of the Fifth and Ninth Circuits that an alien can be “admitted

in” a status that would not entitle him or her to admission. 5

5 For this reason, we also disagree with the argument that the term “in any status” serves

a purpose similar to the phrase “irrespective of such alien’s status” in section 208(a)(1) of the Act, 8 U.S.C. § 1158(a)(1) (2012)

. Although an alien’s status is irrelevant in the asylum

context under section 208, it is key to determining whether an alien is entitled to admission.

T hus, we do not consider these phrases to have the same mean ing

.C ite as 27 I&N Dec. 194 (BIA 2018 ) Interim Decision #3913

201 In some cases, an alien may be “ admitted ” in error

, and he or she may be

removable based on that erroneous admission. See section 237(a)(1)(A) of

the Act , 8 U.S.C. § 1227(a)(1)(A) (2012) ( provid ing that an admitted alien who was inadmissible at the time of entry or adjustment of status is

removable ); section 237(a)(1)(G) (i) of the Act ( provid ing that an alien who obtained admission by virtue of a fraudulent ma rriage is removable ); see also section 237(a)(1)(H) of the Act (providing a waiver of remov ability for aliens who obtained admission by fraud or misrepresentation). Indeed, as we noted

in Matter of Quilantan

, 25 I&N Dec. at 291

, requiring an “admission” to be in compliance with substantive legal requirements would “significant ly

a ffect the applicability of [these] other statutory provisions of the Act

. ” S ee also id

. at 295 (Filppu, concurring) (noting that while the majority’s reading

of t he word “lawful” in the definition of admission in section 101(a)(13)(A) of the Act “is not the most natural reading, . . . it is the reading that emerges from an overall examination of the statute,” including sections 237(a)(1)(A) and (H) of the Act, whic h would be “rendered meaningless” by a contrary interpretation). However, interpreting the phrase “admitted in any status” to requir e that

an alien be admi tted in some form of lawful immigration status does not

create the same incons is t e ncies with the other statutory provisions we discussed in Quilantan

, because the language of section 240A(a)(2) of the

Act is different from that in section 245(a)

. Instead, if there are any statutory conflicts or inconsistencies, they are created by the view of the Fif th and

Ninth Circuits that aliens can be admitted in an unlawful status , which is in tension, if not direct conflict, with sections 235(a)(3) and 212(a)(7) of the Act (requiring all aliens seeking admission to the United States to be inspected and providin g that aliens without a valid entry document are deemed inadmissible , respectively) . These two provisions reflect a clear congressional intent that only aliens who are lawfully entitled to enter the

United States are to be admitted. It is beyond dispute t hat border officers are not supposed to admit

undocumented aliens. The view of the Fifth and Ninth Circuit s that Congress not only would have intended for this to happen but would have triggered an alien’s eligibility for relief on such an admission in an unlawful status turns

on its head the presumption of regularity that courts presume public officers

to “have properly discharged their official duties

. ” Kohli v. Gonzales , 4 7 3 F.3d 1061, 1068 (9th Cir. 2007 ) (cit at i o n omitted); see also United States

v. Chem. Found., Inc. , 272 U.S. 1, 14

– 15 (1926) ; cf. Lai Haw Wong v. INS

, 474 F. 2 d 739, 742 (9th Cir. 1973) ( holding that a “mistaken admission conferred no status, permanent resident or otherwise, ” on the aliens in question). Stated blunt ly, we fail to see how this could be.C ite as 27 I&N Dec. 194 (BIA 2018 ) Interim Decision #3913

202 We further disagree with the Fifth and Ninth Circuit s that the use of the phrase “lawfully admitted” in section 240A(a)(1) of the Act

, but not in

section 240A (a)(2)

, indicates that Congress intended the latter to apply to

aliens admitted in an un lawful status. See Saldivar

, 877 F.3d at 817 ; Tula

- Rubio , 787 F.3d at 294

– 95 . Section 240A(a)(1) requires that an

a pplica n t “ha[ve] been an alien lawfully admitted for permanent residence for not less than 5 years .” (Emphasis added

. ) The phrase “lawfully admitted for permanent residence” is a term of art that refers to “the status of having been lawfully accorded the privilege of residing permanently in the United

Stat es

. ” S ection 101(a)(20) of the Act

. Unlike the use of the term “admitted” in section 240A(a)(2), the phrase “lawfully admitted for permanent residence” in section 240A(a)(1) does not refer to a physical entry into the

United States. S ee Negrete

- Ramirez v. Holder , 741 F.3d 1047, 1053 (9th Cir. 2014) (holding that the term “lawfully admitted for permanent residence” refers to all lawful permanent residents, regardless of whether they obtained the status at the time of a physical entry or adjusted status wh ile in the United States). Thus, the inclusion of the word “lawfully” in section 240A(a)(1) but not in section 240A(a)(2) does not indicate that the latter includes aliens erroneously admitted with no legal status

. See Saldivar

, 877 F.3d at 819

− 20 (Kozin ski, J., dissenting) (noting that it does not make sense to contrast “lawfully admitted for permanent residence” with “admitted in any status” because the former refers to the acquisition of a legal status while the latter refers to a physical admission at the border). Rather, “admitted in any status” clarifies that, unlike section 240A(a)(1), section 240A(a)(2) of the Act requires that the alien made a physical admission at a port of entry

, but not

that he or she obtained the status of “an alien lawfully admitted for permanent

residence” at the time of that admission.

As a consequence
, we will only adhere to Tula

- Rubio and Saldivar in cases arising in the Fifth and Ninth Circuit s

. 6 In all other circuits that have yet to address the issue, we hold that alien s must show that t he y possessed some form of lawful immigration status at the time of admission to establish

that t he y were “admitted in any status ” under section 240A(a)(2) of the Act

.

C

. Application to the Respondent

T he Immigration Judge pretermitted the respondent’s application based on the legal determination that a “wave through” entry can never be an

6 T he Fifth and Ninth Circuit s based their decision s on what they found to be the unambiguous meaning of section 240A(a)(2) of the Act. Saldivar

, 877 F.3d at 816;

Tula

- Rubio , 787 F.3d at 293− 95 & n n .4

− 5 . Thus, we are bound by those holding s, notwithstanding our disagreement with them

. See Nat’l Cable & Telecomms. Ass’n

v. Brand X Internet Servs. , 545 U.S. 967, 982 (2005).C ite as 27 I&N Dec. 194 (BIA 2018 ) Interim Decision #3913

203 “ admission in any status ” under section 240A(a)(2) of the Act

, so she did not hear testimony on the respondent’s cla imed “wave through” entry or on any

other issue s involving the respondent’s eligibility for cancellation of

removal. Because the Ninth Circuit has concluded that a “wave through”
entry is an “ admission in any status,” we will remand the record to the

Immi gration Judge for further consideration of the respondent’s eligibility for cancellation of removal under section 240A(a). Although the DHS argues that the respondent waived her right to present testimony and other evidence at the final hearing, we conclu de that the respondent sufficiently raised all issues before the Immigration Judge and thus preserved them for appeal and a further hearing. 7 The respondent bears the burden of proving that she was waved through at a port of entry in 1998 and that she maintained continuous residence for

7 years following that entry. See section 240A(a)(2) of the Act; see also section 240(c)(4)(A) of the Act. On remand, the parties should submit testimonial and other evidence regarding this and other issues relevant t o the respondent’s eligibility for cancellation of removal under section 240A(a) of

the Act. 

### ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and for the entry of a new

decision.



### CONCURRING AND DISSENTING OPINION : Roger A. Pauley,
Board Member

I concur in the result, which the majority on ly reaches because it acknowledges that the decision of the United States Co urt of Appeals for the

Ninth Circuit in Saldivar v. Sessions

, 877 F.3d 812 (9th Cir. 2017), which

hold s that a wave through constitutes an “admission in any status” for purposes of section 240A (a)(2) of the Act, is binding on the Board s ince this

case arises in that circuit. However, unlike the majority, I conclude that both

the Ninth Circuit and the Fifth Circuit

, whose similar holding in Tula

- Rubio

v. Lynch , 787 F.3d 288 (5th Cir. 2015), the Ninth Circuit followed, arrived at

the correct result

, even though, like the major ity, I disagree with some aspects of those courts’ reasoning.

7 Although the respondent’s counsel declined to present testimony at the final hearing, he

did so in anticipation of the Immigration Judge ’s rul ing on a purely legal question that was potentially determinative of the respondent’s statutory eligibility for re lief under section 240A(a) of the Act. The Immigration Judge specifically noted that if she did not pretermit the application, she would continue the matter for testimony.C ite as 27 I&N Dec. 194 (BIA 2018 ) Interim Decision #3913

204 Specifically, I concur to the extent the majority holds that a wave through “admission,” as that term is defined by section 101(a)(13)(A) of the Act,

8 U.S.C. § 1101(a)(13)(A) (2012)

, as th e “lawful entry of the alien into the United States after inspection and authorization by an immigration officer,”

must be in some lawful status and it disagrees with the above

- cited decisions that such an admission may be in an unlawful status

. I agree that no immigration officer acting in a procedurally regular manner intends to grant

entr y in to the United States to an alien who that officer believes has no lawful

status. 1 That being so, if the respondent was waved through as she alleged

, 2 an d

she was thereby “admitted,” as we held in Matter of Quilantan , 25 I&N Dec. 285 (BIA 2010), and as all agree, the question becomes whether she was “admitted in any status” within the meaning of section 240A(a)(2) so as to be eligible for cancellation of r emoval. The majority decision declares that in all circuits except the Fifth and Ninth, “alien s must show that t he y possessed some form of lawful immigration status at the time of admission

to establish that t he y were ‘ admitted in any status’ under section 240(A)(a)(2)

of the Act.” Matter of Castillo Angulo , 27 I&N Dec. 194

, 202 (BIA 2018). This holding (or dicta

, depending on how one regards it), from which I dissent, is based on the mistaken premise that “admission in any status” requires that th e concededly lawful status under which the respondent was

admitted must later be identified

. 3

I would conclude that the language “admitted in any status” does not require that the admitted alien’s status be identified in order to meet the requirement of section 240A(a)(2). While the majority argues that the phrase “in any status” is redundant if not construed to require that the particular lawful status be identified, such an argument is unpersuasive in the context of that provision. The Supreme Court has repeatedly held in cases where a statute uses the expansive word “any” that there is no basis in the text for limiting the application of the statute to only certain types of instances. See,

e.g.
, Ali v. Fed

. Bureau of Prisons , 552 U.S. 214, 21 8

− 19 (2008) ; s ee also Hanif v. Att ’ y Gen

. of U

. S

. , 694 F.3d 479, 485

− 86 (3d Cir. 2012) (noting that

1 Contrary to our dicta in Matter of Blancas , 23 I&N 458, 460 (BIA 2002), that the concept of status “denotes someone who possesses a certain legal standing,” it is clear that the Act in some instances does contemplate that a “status” may be unlawful. See, e.g.

, section 245(c)(2) of the Act, 8 U.S.C. § 1255( c ) (2) (20 12 ) ( rendering ineligible for adjustment of status an alien “who is in unlawful immigration status” ). However, the fact

that a status can be unlawful does not mean that an “admission” can be in an unlawful

status.

2 I concur with the majority that remand is appropriate to determine

, as a matter of fact

, whether the respondent was waved through.

3 I note that the majority decision has the consequence of creating a conflict in outcomes depending on the circuit in which the issue arises.C ite as 27 I&N Dec. 194 (BIA 2018 ) Interim Decision #3913

205 the “in any status” language could reflect congressional recognition that an alien may initially be admitted to the United States in some status other than

as a lawful permanent resident and “immediately begins accumulating time following his initial admission, regardless of the status ” (emphasis added) (quoting Nelson v. Att ’ y Gen

. of U

. S

. , 685 F.3d 318, 323 (3d Cir. 2012)). Furthermore, as the Ninth Circuit observed in Saldivar , a comparison of sections 240A(a)(1) and 240A (a)(2) of the Act suggests that the purpose of “in any status” is to contrast the two provision s and to clarify the continuous residence requirement. Saldivar

, 877 F.3d at 817. S ection 240 A (a)(1) states that an alien must have been “lawfully admitted for permanent residence for not less than 5 years.” This provision is immediately followed by section

240A (a)(2), at issue here, which notably omits the word “lawfully” when referring to an al ien’s admission and states that the admission can be “in any

status.” This suggests that “in any status” was merely meant to emphasize

that an alien admitted into the United States in any lawful status, even if not as a lawful permanent resident, is inclu ded within the relevant provision. See
Ali

, 552 U.S. at 226 (finding that an arguably superfluous provision was included “to remove any doubt”). Moreover, the generous nature of the eligibility requirements for those aliens who satisfy the section 240A (a)(1) requirement of having been a lawful permanent resident for at least 5 years demonstrates the unlikelihood that Congress would have intended the initial “admitted in any status” element to necessitate that the particular lawful status of original adm ission

be identified. We held in Matter of Blancas , 23 I&N Dec. 458 (BIA 2002), that the initial admission in any status requirement need not be followed by a period of continuous lawful status, so long as the alien later satisfies the requirement of cont inuous residence for at least 5 years as a lawful permanent

resident. In Blancas , we found further that an initial admission via a border crossing card, perhaps the most minimal form of lawful status, satisfied the provision’s requirement for an admission in any status. It is hardly likely that, where Congress has made an alien eligible for cancellation of removal who was admitted with a border crossing card, it would have demanded that an alien who necessarily was admitted in some lawful status through a wave through, as the majority concedes, must later identify the particular lawful

status in which he or she was admitted in order for the 7

- year period of continuous residence required by section 240A(a)(2) to commence. Furthermore, the majority’s holding that an alien who was waved through must establish the particular status that the alien possessed when he or she was waved through, in order to give meaning to the words “in any status” in section 240A(a)(2), is inconsistent with Matter of Quilantan , wher e we held that a wave through was an “admission” within the meaning of sectionC ite as 27 I&N Dec. 194 (BIA 2018 ) Interim Decision #3913

206 101(a)(13)(A) of the Act

. 4 The majority relies for its conclusion on the assertion that some aliens who are waved through may
, in fact

, substantively

lack lawful status when determined retrospectively. This almost certainly is true, given that immigration officers who wave through occupied vehicles inevitably will make mistakes. But that does not mean the occupants of those

vehicles have not been “admitted” under Quilantan

, because any subsequent

determination that a waved

- through alien lacked a lawful status at the time does not retrospectively render the alien as not having been properly

“admitted.” The only area in which we have found that an alien’s initially granted

st atus may be negated ab initio is in the case of a lawful permanent resident whose status as such was wrongly conferred. Matter of Koloamatangi

, 23 I&N Dec. 548 (BIA 2003). But even there our holding was that such an

alien could not show that he or she h ad been “lawfully admitted for permanent residence,” not that such an alien had not been “admitted” in the procedurally regular sense meant by Matter of Quilantan . Thus, for example, if an alien were wrongly allowed to enter with a border crossing card tha t the immigration officer failed to notice had expired, that would not detract from the fact that such an alien had been inspected and authorized to enter the United States and thus had been “admitted in any status” for purposes of section 240A(a)(2) ; nor would it have changed the result in Matter of

Blancas

. The same is true for an alien who was admitted via a wave

- through

admission that was later determined to have been substantively mistaken. I therefore respectfully dissent from the majority’s conclusion otherwise and would find that, in any circuit, an alien is eligible to seek cancellation of removal if he or she establishes an admission via a wave through, even if t he

alien cannot demonstra te the particular lawful status under which admission was authorized, and even if it is later found that he or she had no lawful status

at that time.

4 While our decision was in the cont ext of establishing eligibility for adjustment of status,

the D epartment of H omeland S ecurity has properly conceded at oral argument in this case

that the holding in Quilantan is not limited to that form of relief and applies to the concept

of admission in section 240A as well.