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Matter of Rosalina CASTILLO ANGULO, Respondent

Decided January 29, 2018

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(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” under 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, Esquire, 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 decision. The record will be remanded 

for further proceedings.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Mexico who claims that she first 

entered the United States in October 1991. In April 2003, she adjusted status 

to that of a lawful permanent resident. On January 12, 2010, the Department 

of Homeland Security (“DHS”) served the respondent with a notice to appear, 

charging her with removability under section 212(a)(6)(E)(i) of the Act, 

8 U.S.C. § 1182(a)(6)(E)(i) (2006), for smuggling or attempting to smuggle 
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an alien into the country. 1 The respondent applied for cancellation of 

removal under section 240A(a) of the Act. The Immigration Judge 

pretermitted the respondent’s application, concluding that she did not 

establish that she “has resided in the United States continuously for 7 years 

after having been admitted in any status,” as required by section 240A(a)(2) 

of the Act. 

The respondent claims that she presented herself for inspection in 1998 

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 accrue continuous residence for purposes of 

cancellation of removal after that date. 

The Immigration Judge rejected the respondent’s argument, concluding 

that Matter of Quilantan only applies to applications for adjustment of 

status under section 245(a) of the Act, 8 U.S.C. § 1255(a) (2006), so the 

respondent’s alleged “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 unnecessary to determine whether the respondent 

had any status at the time of her alleged entry. The Immigration Judge further 

determined that the respondent could not establish the continuous residence 

required by section 240A(a)(2), because her residence began to accrue when 

she adjusted her status in April 2003, and it was terminated under section 

240A(d)(1) by service of the notice to appear 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 2012) (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.
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II. ANALYSIS

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

In 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)

(2006), requires procedural regularity, rather than compliance with 

substantive legal requirements, and that an alien who entered after she had

been “waved through” a port of entry had been “admitted” 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 the respondent was “admitted” for purposes 

of section 240A(a)(2). 

B. “Admitted in Any Status”

The 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, 

she 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, the DHS contends that the phrase

“admitted in any status” in section 240A(a)(2) requires an alien to show not 

only that he or she has been admitted, but also that the admission was attained 

by means of some lawful immigration status. The Board has not issued a 

published decision addressing whether the “wave through” entry of an alien 

who was not entitled to any lawful status constitutes an admission “in any 

status.” 

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

to whether a “wave through” entry constitutes an admission “in any status.” 

See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc. (“Chevron”), 467 

U.S. 837, 842–43 (1984). Having considered 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. 
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Passenger Corp. v. Atchison, Topeka & Santa Fe Ry. Co., 470 U.S. 451, 473 

n.27 (1985) (noting that words are “ambiguous” if they are “reasonably 

susceptible of different interpretations”). 4 We must therefore develop a 

reasonable interpretation of the provision, taking 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 the Act, 

we consider it significant that the phrase “admitted in any status” differs from 

the wording of section 245(a), which requires only that an alien be “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, 464 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” (citations

omitted)). Reading section 240A(a)(2) of the Act in the same way we do

section 245(a)—as requiring 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 

admitted,” it 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 & nn.4−5, with Tula Rubio, 805 F.3d at 187 & 

n.4, 192. 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 of 

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 litigants alike 

strongly suggests that the statutory language is far from unambiguous. 
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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, by 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) requires 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) (1994), provides 

valuable insight into congressional intent regarding the requirement that an 

alien must be admitted “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 where Congress’ intent cannot be determined from a plain 

reading of the statute, the court should “look to the congressional 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) was 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 requires an alien to have been lawfully domiciled for 7 years); 

see also S. Rep. No. 81-1515, at 382–84 (1950) (suggesting 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 intended to eliminate this “lawful”

entry requirement when it enacted the “residence” requirement 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 interpretations of former section 

212(c), aliens were afforded relief only if they possessed 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). 
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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 omitted

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 residents who had resided continuously in this 

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 “Cancellation of Deportation,” both of which limited relief 

to aliens who had resided in the United States continuously for at least 7 years

after being “lawfully admitted”).

This legislative history also indicates that at the time Congress was 

considering section 240A(a)(2), Government officials within the former

Immigration and Naturalization Service (“INS”) interpreted this provision as

being 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 cancellation of 

removal to aliens 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) (statement of Hon. Doris Meissner, Comm’r, INS) 

(same). Thus, Congress only intended that aliens who possessed lawful 

status upon admission would 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. This 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 immigrant or 

nonimmigrant.” See 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 rehearing en banc) 

(holding that the phrase “‘any status’ refers exclusively to the legal categories 

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

with Matter of Quilantan, 25 I&N Dec. at 293, where we rejected the DHS’s 
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claim that section 245(a) of the Act requires an alien to have been admitted 

in a particular status, largely because it had offered no support for that claim. 

However, 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 residence clock.

Requiring an alien to have possessed a lawful status at the time of entry 

also 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 illegally 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 [an alien’s claimed 

“wave through”], so the incentive to lie would be powerful and the chance of 

getting caught nil”). The respondent’s view would essentially relieve aliens

of the statutory burden of establishing that he or she has satisfied all the 

eligibility requirements 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 293−94 & n.5. When an alien seeks admission at 

the border, an immigration official admits the alien only upon a 

determination that he or she is lawfully entitled to enter the United States. 

See section 212(a)(7) of the Act, 8 U.S.C. § 1182(a)(7) (2012) (rendering 

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) (providing 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 conclusion 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. 

Thus, we do not consider these phrases to have the same meaning.
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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) (providing 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 (providing that an alien who 

obtained admission by virtue of a fraudulent marriage is removable); see also

section 237(a)(1)(H) of the Act (providing a waiver of removability 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 “significantly

affect the applicability of [these] other statutory provisions of the Act.” See 

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

of the 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, which would be “rendered meaningless” by a contrary 

interpretation). 

However, interpreting the phrase “admitted in any status” to require that 

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

create the same inconsistencies 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 Fifth 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 providing 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 that border officers are not supposed to admit 

undocumented aliens. The view of the Fifth and Ninth Circuits 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, 473 

F.3d 1061, 1068 (9th Cir. 2007) (citation omitted); see also United States 

v. Chem. Found., Inc., 272 U.S. 1, 14–15 (1926); cf. Lai Haw Wong v. INS, 

474 F.2d 739, 742 (9th Cir. 1973) (holding that a “mistaken admission 

conferred no status, permanent resident or otherwise,” on the aliens in 

question). Stated bluntly, we fail to see how this could be. 
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We further disagree with the Fifth and Ninth Circuits 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 unlawful status. See Saldivar, 877 F.3d at 817;

Tula-Rubio, 787 F.3d at 294–95. Section 240A(a)(1) requires that an 

applicant “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 

States.” Section 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. See 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 while 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

(Kozinski, 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 Circuits.

6

 In all other circuits that have 

yet to address the issue, we hold that aliens must show that they possessed 

some form of lawful immigration status at the time of admission to establish

that they were “admitted in any status” under section 240A(a)(2) of the Act.

C. Application to the Respondent

The Immigration Judge pretermitted the respondent’s application based 

on the legal determination that a “wave through” entry can never be an 

 6 The Fifth and Ninth Circuits based their decisions 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 & nn.4−5. Thus, we are bound by those holdings,

notwithstanding our disagreement with them. See Nat’l Cable & Telecomms. Ass’n 

v. Brand X Internet Servs., 545 U.S. 967, 982 (2005).
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“admission in any status” under section 240A(a)(2) of the Act, so she did not 

hear testimony on the respondent’s claimed “wave through” entry or on any 

other issues 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 

Immigration 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 conclude 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 to 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 only reaches because it 

acknowledges that the decision of the United States Court of Appeals for the

Ninth Circuit in Saldivar v. Sessions, 877 F.3d 812 (9th Cir. 2017), which 

holds 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 since 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 majority, 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 ruling on a purely legal question that was 

potentially determinative of the respondent’s statutory eligibility for relief 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.
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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 the “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

entry into 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 and 

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 removal. The majority decision declares that 

in all circuits except the Fifth and Ninth, “aliens must show that they

possessed some form of lawful immigration status at the time of admission 

to establish that they 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 the 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, 218−19 (2008); see 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) (2012) (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.
Cite 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 provisions and to clarify the continuous 

residence requirement. Saldivar, 877 F.3d at 817. Section 240A(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 alien’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 included 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 admission 

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 continuous 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, where we held 

that a wave through was an “admission” within the meaning of section 
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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 

status 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 had 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 that 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 the 

alien cannot demonstrate 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 context of establishing eligibility for adjustment of status, 

the Department of Homeland Security 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.