Vamusa Kosh Ishmael v. Attorney General United States ( 2023 )


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  •                                           PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 21-2563
    VAMUSA KOSH ISHMAEL,
    Petitioner
    v.
    ATTORNEY GENERAL UNITED STATES OF
    AMERICA
    On Petition for Review of a Final Order
    Of the Board of Immigration Appeals
    (BIA No.: A072-803-370)
    Immigration Judge: Alice Song Hartye
    Argued on January 18, 2023
    Before: AMBRO*, PORTER, and FREEMAN, Circuit
    Judges
    *Judge Ambro assumed senior status on February 6,
    2023.
    (Opinion Filed May 16, 2023)
    Benjamin J. Hooper (Argued)
    Pennsylvania Immigration Resource Center
    294 Pleasant Acres Road
    Suite 202
    York, PA 17402
    Counsel for Petitioner
    Lindsay Marshall (Argued)
    United States Department of Justice
    Office of Immigration Litigation
    P. O. Box 848
    Ben Franklin Station
    Washington, DC 20044
    Counsel for Respondent
    Jonah B. Eaton (Argued)
    Nationalities Service Center
    1216 Arch Street
    4th Floor
    Philadelphia, PA 19107
    Counsel for Amicus-Petitioner
    2
    OPINION OF THE COURT
    AMBRO, Circuit Judge
    Ishmael Kosh1 petitions us to review the order from the
    Board of Immigration Appeals (“BIA”) that terminated his
    asylum status and denied his applications for withholding of
    removal and protection under the Convention Against Torture.
    He maintains that the Department of Homeland Security
    (“DHS”) improperly sought to terminate his asylum status in
    asylum-only proceedings because he first entered the United
    States under the Visa Waiver Program. Per Kosh, that limiting
    program no longer applies to him, so he is entitled to complete-
    jurisdiction removal proceedings instead. In such unlimited
    proceedings, asylees can raise an adjustment-of-status claim as
    a defense to removal. We conclude that, if Kosh re-entered the
    country as an asylee without signing a new Visa Waiver
    Program form limiting his defenses, he is entitled to complete-
    jurisdiction proceedings.     We thus grant his petition for
    review, vacate the BIA’s decision, and remand for further
    proceedings consistent with this opinion.
    1
    Though the caption throughout the immigration proceedings
    and on petition to our Court refers to the petitioner as “Vamusa
    Kosh Ishmael,” the parties and other documents call him
    “Ishmael Kosh.” We follow the parties’ lead and do the same.
    3
    I.    BACKGROUND
    Kosh, a Liberian citizen, arrived in the United States in
    2001 with a false Portuguese passport and requested entry
    under the Visa Waiver Program (“VWP”).                  It allows
    noncitizens from designated countries—including Portugal,
    but not Liberia—to seek admission for up to 90 days as
    nonimmigrant visitors without obtaining a visa. 
    8 U.S.C. § 1187
    (a). All VWP entrants must sign a Visa Waiver Form in
    which they “waive[] any right . . . to contest, other than on the
    basis of an application for asylum, any action for removal of
    the alien.” 
    Id.
     § 1187(b)(2). Signing this waiver form is
    mandatory each time someone seeks entry through the VWP
    (even if the individual already signed one on a previous trip).
    See     Form      I-94W      Nonimmigrant        Visa      Waiver
    Arrival/Departure Record, U.S. Customs and Border
    Protection,
    https://www.cbp.gov/sites/default/files/assets/documents/201
    8-Mar/700120%20-%20CBP%20Form%20I-
    94W%20ENG%20%281216%29%20-
    20FINAL%20%28SAMPLE%29.pdf (last visited Apr. 28,
    2023) (“This form must be completed by every nonimmigrant
    visitor not in possession of a visitor’s visa who is a national of
    one of the countries enumerated in 8 C.F.R. [§] 217.”). When
    Kosh arrived in 2001, he signed upon arrival the waiver as part
    of his Form I-94W.
    Kosh then confessed his Portuguese passport was fake
    and sought asylum. His matter was referred to an immigration
    judge (“IJ”) pursuant to 
    8 C.F.R. § 208.2
    (b), which affords IJs
    jurisdiction over asylum applications by VWP entrants.
    Although Kosh ultimately did not qualify for VWP entry
    because his Portuguese passport was fake, he was still
    4
    restricted to the VWP’s asylum-only proceedings based on his
    initial application for entry through that program. See Shkembi
    v. Att’y Gen., 
    41 F.4th 237
    , 242 (3d Cir. 2022).2
    In his asylum application, Kosh claimed he feared
    returning to Liberia, which at the time had an ongoing civil
    war. Because his family members were involved with the
    United Liberation for Democracy political party, they faced
    significant violence and other dangers. His father had been
    murdered and Kosh himself was arrested before escaping
    2
    Unlike Kosh, the noncitizen in Shkembi was denied asylum
    in his limited-jurisdiction removal proceeding following his
    fraudulent entry under the VWP. See 
    id. at 238
    . Because of
    that denial, he argued he should not be bound by the VWP’s
    limitations because he was a citizen of a non-VWP-participant
    country and thus could not have entered properly under that
    program. 
    Id.
     Our Court’s decision in Shkembi rejected that
    argument and made clear that noncitizens who fraudulently
    enter the United States under the VWP with a fake passport
    cannot use their own fraud to escape waivers made under that
    program. 
    Id. at 243
    . In line with this precedent, Kosh was
    placed appropriately in asylum-only proceedings back in
    2001. But Shkembi goes no further than that. It does not
    explain the outer bounds of the waiver. The opinion states
    neither that the waiver lasts indefinitely nor that any particular
    action cuts off its applicability. And because Shkembi himself
    never obtained asylum, the opinion could not instruct on what
    happens after a noncitizen, like Kosh, is granted asylum and
    travels legally using his refugee travel documents. Thus the
    dissent’s reliance on Shkembi to reason that Kosh should still
    be bound by the VWP in 2023 without regard to what occurred
    in the last two decades takes its holding too far.
    5
    prison and fleeing to the United States. The IJ granted Kosh
    asylum on March 1, 2001. Over the next few years, he lived in
    the United States as an asylee, married his wife, and had four
    children. He left the country in 2005 using his refugee travel
    document and apparently re-entered later that year.
    In 2006, Kosh became involved with a tax fraud
    conspiracy. He worked as a manager and tax preparer for a
    sham tax service company that filed false information on its
    clients’ tax returns to increase their refunds. The company then
    kept the additional refund amounts for itself and passed on a
    lower amount to its clients. Kosh played a large role in the
    conspiracy. He was involved for its full duration, was a
    manager or supervisor to five or more other participants in the
    criminal activity, recruited customers, and even started a new
    sham tax preparation business after the initial scheme was shut
    down.
    In 2016, a jury convicted Kosh of conspiracy to defraud
    the United States, in violation of 
    18 U.S.C. § 371
    , and filing
    false and fraudulent income tax returns, in violation of 
    26 U.S.C. § 7206
    (2). (He was acquitted of identity theft and one
    count of filing false and fraudulent income tax returns.) Kosh
    received concurrent sentences of 52 months and 36 months in
    prison and was ordered to pay over $239,000 in restitution,
    jointly and severally, with his co-defendants.
    Between his arrest and conviction, the United States
    Citizenship and Immigration Services (“USCIS”) denied
    Kosh’s application to adjust his status to that of a lawful
    permanent resident. See 
    8 C.F.R. § 1209.2
    . He was statutorily
    eligible to apply because he had lived in the United States as
    an asylee for over a year and, although his criminal convictions
    6
    could make him ineligible for adjustment of status, DHS can
    waive that ground of inadmissibility “for humanitarian
    purposes, to assure family unity, or when it is otherwise in the
    public interest.” 
    8 U.S.C. § 1159
    (c). Kosh’s denial was
    “without prejudice to the alien’s right to renew the application
    in [removal] proceedings under part 240 of this chapter.” 
    8 C.F.R. § 1209.2
    (f).
    Then, in 2020, DHS moved to reopen Kosh’s old
    asylum-only proceeding from 2001 to terminate his asylum
    status, given his criminal conviction. An IJ in Texas granted
    that motion. He then transferred venue to York, Pennsylvania
    (based on Kosh’s place of confinement) for a hearing on DHS’s
    motion to terminate his asylee status. Kosh, through counsel,
    moved to terminate the proceedings because the Court had, in
    his view, inappropriately reopened asylum-only proceedings.
    He maintained that DHS, instead of reopening his earlier
    proceedings, should have filed removal proceedings under 8
    U.S.C. § 1229a, which would have allowed him to seek
    adjustment of status. The type of proceeding Kosh sought,
    which is set out in 8 U.S.C. § 1229a, is also called a “§ 240
    proceeding” because the statute was created under section 240
    of the Immigration and Nationality Act (“INA”).
    On September 30, 2020, the IJ denied Kosh’s motion to
    terminate. She held that, because another IJ had previously
    granted him asylum in limited proceedings, DHS properly
    moved to reopen those proceedings to terminate his asylee
    status. Further, she ruled that the Court lacked jurisdiction in
    the limited proceeding to decide an adjustment-of-status
    application and could only consider Kosh’s application for
    fear-based relief.
    7
    Kosh applied for all three types of fear-based relief:
    asylum, withholding of removal, and relief under the
    Convention Against Torture (“CAT”). On December 21, 2020,
    after a merits hearing, the IJ terminated Kosh’s asylee status
    and denied his applications for relief. She held that his
    convictions were aggravated felonies under 
    8 U.S.C. § 1101
    (a)(43)(M)(i) (offenses involving fraud or deceit where
    the loss exceeds $10,000) and (a)(43)(U) (conspiracy to
    commit an aggravated felony). Kosh was thus no longer
    eligible for asylum or withholding of removal. 
    8 U.S.C. § 1158
    (b)(2)(A)(ii); 
    8 U.S.C. § 1231
    (b)(3)(B)(ii). In addition,
    the IJ denied the CAT application on the merits. Overall, she
    found that conditions in Liberia had changed since the civil war
    and that relief was not due based on Kosh’s ethnicity, Muslim
    faith, or alleged threats against him.
    Kosh filed a pro se appeal to the BIA.3 It rejected his
    arguments that (1) the IJ erred in denying his motion to
    terminate and in placing him in asylum-only proceedings, (2)
    his convictions are neither aggravated felonies nor particularly
    serious crimes, and (3) he met his burden of proof for CAT
    relief.4 Kosh, through new counsel, filed before us a petition
    for review and a motion for a stay of removal pending review.
    Dkt. Nos. 1, 2. Our Court granted the stay. Dkt. No. 16.
    3
    An attorney entered her appearance after Kosh filed his
    appeal. While counsel’s name appears on the BIA’s decision,
    the administrative record does not include a brief filed by
    counsel. The BIA addressed the arguments raised by Kosh as
    a pro se litigant.
    4
    Kosh does not challenge the denial of CAT relief on petition
    to us, though he did challenge it before the BIA.
    8
    II.   JURISDICTION AND STANDARD OF REVIEW
    The BIA had jurisdiction under 
    8 C.F.R. § 1003.1
    (b).
    We have jurisdiction under 
    8 U.S.C. § 1252
    .
    We review the final administrative decision of the BIA.
    Camara v. Att’y Gen., 
    580 F.3d 196
    , 201 (3d Cir. 2009). Legal
    determinations get a fresh review. Serrano-Alberto v. Att’y
    Gen., 
    859 F.3d 208
    , 213 (3d Cir. 2017). For factual
    determinations, we are bound by findings of fact that are
    supported by substantial evidence “unless a reasonable
    adjudicator would be compelled to arrive at a contrary
    conclusion.” 
    Id. at 212-13
    .
    III.   ANALYSIS
    Kosh argues we should vacate the BIA’s order of
    removal because (1) the Government did not meet its burden
    of showing he committed an aggravated felony to terminate his
    grant of asylum, and (2) it improperly placed him in asylum-
    only proceedings, depriving him of the opportunity to raise a
    claim for adjustment of status to lawful permanent resident in
    defense of removal. Though his first argument fails, if Kosh
    re-entered the country as an asylee and did not agree to any
    new waiver of defenses, he is correct that he is entitled to an
    unrestricted removal proceeding that will allow him to present
    his claim for lawful permanent residence to an IJ.
    a. Kosh was convicted of an aggravated felony.
    Kosh is ineligible for asylum if his conviction was for
    “an aggravated felony.” 
    8 U.S.C. §§ 1158
    (b)(2)(A)(ii) and
    (b)(2)(B)(i). That includes an offense that “involves fraud or
    9
    deceit in which the loss to the victim or victims exceeds
    $10,000” and “conspiracy to commit [such an] offense.” 
    8 U.S.C. §§ 1101
    (a)(43)(M)(i) and (U). Kosh concedes his
    convictions involved fraud but argues the Attorney General has
    not shown his convicted offenses resulted in victim loss
    exceeding $10,000.
    The Attorney General has the burden to show by clear
    and convincing evidence that the loss amount specifically
    “tethered” to Kosh’s convictions exceeds $10,000. Nijhawan
    v. Att’y Gen., 
    523 F.3d 387
    , 395-96 (3d Cir. 2008), aff’d, 
    557 U.S. 29
     (2009). Because Kosh participated in a conspiracy, the
    loss must stem from the “specific way” he participated in the
    scheme. Rad v. Att’y Gen., 
    983 F.3d 651
    , 666-67 (3d Cir.
    2020).
    Here, the IJ and BIA relied on substantial evidence in
    the record showing that Kosh’s specific involvement in the
    conspiracy resulted in a loss greater than $10,000. The record
    includes the judgment of the U.S. District Court of the District
    of Minnesota and the presentence investigation report. The
    judgment requires Kosh to pay $239,601 in restitution. The
    presentence investigation report explains that the estimated
    losses from his participation in the conspiracy are the full $2.5
    million because he was a main participant in the scheme.
    Given that Kosh’s participation in the scheme caused losses up
    to at least $239,601 (the amount of restitution ordered in the
    judgment against him) and possibly up to $2.5 million (the full
    loss estimated in the presentence report), his contribution far
    exceeds the $10,000 threshold. We affirm the IJ and BIA’s
    factual finding that Kosh committed an aggravated felony.
    10
    b. Although Kosh committed an aggravated
    felony, he may still be eligible for adjustment
    of status to lawful permanent resident.
    Because Kosh was convicted of an aggravated felony,
    he is no longer eligible for asylum. 
    8 U.S.C. § 1158
    (b)(2)(A)(ii); (b)(2)(B)(i). However, this conviction does
    not foreclose a claim for adjustment of status to lawful
    permanent resident. In general, asylees may apply for an
    adjustment of status to lawful permanent resident if they meet
    the statutory requirements contained in 
    8 U.S.C. § 1159
    (b).
    The adjustment statute requires that an asylee has lived in the
    United States for at least one year and “is admissible.” 
    8 U.S.C. § 1159
    (b). As explained above, Kosh is inadmissible
    because he was convicted of an aggravated felony. However,
    the IJ may waive inadmissibility based on criminal convictions
    “for humanitarian purposes, to assure family unity, or when it
    is otherwise in the public interest.” 
    8 U.S.C. § 1159
    (c). So
    Kosh could adjust his status if he convinces an IJ that
    humanitarian purposes or family unity weigh in favor of
    waiving his inadmissibility.
    Kosh meets the statutory requirements to apply for
    adjustment of status and an accompanying waiver of
    admissibility. Even though the USCIS already denied his
    application for adjustment of status, he has the right to renew
    his application before an IJ. 
    8 C.F.R. § 1209.2
    (f). Thus, the
    question we turn to next—whether DHS can reopen asylum-
    only proceedings or must initiate complete removal
    proceedings (where Kosh could renew his adjustment claim)—
    affects the defenses he can raise and the chances he has to
    remain in the United States.
    11
    c. If Kosh did not waive defenses to removal at
    his last entry, he is entitled to raise his claim
    for lawful permanent residence in an
    unrestricted removal proceeding.
    Kosh still faces a hurdle because DHS reopened his
    asylum-only proceeding from 2001, and in that proceeding the
    IJ did not have jurisdiction to consider his claim for adjustment
    of status to lawful permanent resident. The parties dispute
    whether he is limited to asylum-only proceedings because he
    previously entered the United States through the VWP, under
    which he waived his right to challenge his removal on non-
    asylum grounds. We hold that the VWP no longer applies to
    an individual who leaves and re-enters the country as an asylee
    without signing an additional waiver of defenses to removal.
    Absent a new waiver upon his last entry, Kosh is entitled to
    raise his adjustment claim before an IJ in an unrestricted
    proceeding.
    When Kosh first entered the United States in 2001, he
    signed the Visa Waiver Form that says, “I hereby waive any
    rights to review or appeal of an immigration officer’s
    determination as to my admissibility, or to contest, other than
    on the basis of an application for asylum, any action in
    deportation.” A.R. 773. Because he signed this waiver, his
    first immigration proceedings were limited to the question of
    asylum. But now he may be no longer bound by that waiver
    (or the limited procedures that come with it) if he left the
    country and re-entered as an asylee without signing a new
    waiver, not as a VWP entrant, in 2005.5
    5
    Kosh presents two distinct reasons why the waiver does not
    apply to him: (1) because he left and re-entered, and (2)
    because he was granted asylum status that displaced his status
    12
    To understand the scope of the waiver, we interpret the
    Form I-94W that Kosh signed in 2001 governing the terms of
    his stay in the United States using familiar contract principles.
    Although the waiver applies to “any action in deportation,”
    App. 778, we do not interpret that phrase “in a vacuum, but
    rather must carefully consider the parties’ context.” In re New
    Valley Corp., 
    89 F.3d 143
    , 149 (3d Cir. 1996); see also In re
    Stone & Webster, Inc., 
    558 F.3d 234
    , 246 (3d Cir. 2009) (“It is
    a general rule of contract construction to consider the entire
    instrument.” (internal quotation omitted)).
    Here, the Form I-94W shows that its terms apply to the
    time spent in the U.S. starting with the entry at which the form
    was signed and continuing at most until the next departure. But
    it does not apply to visits begun by subsequent entries. This is
    most obviously demonstrated by the form’s specific caution
    that the VWP’s restrictions apply “during your visit under this
    program.” App. 773. Also, the form is titled the
    “Nonimmigrant Visa Waiver Arrival/Departure Form,”
    containing a section on arrival and separate section on
    departure. Id. at 772-73 (emphasis added). Finally, the visitor
    must “[r]etain this permit in [his] possession” for the duration
    of the visit but “must surrender it when [he] leave[s],” meaning
    that the visitor no longer has access to the contract or its terms
    for reference after departing. Id. at 773. Reading the waiver
    provision within its proper context reveals that it could apply
    only to any action between when the noncitizen arrives under
    the program and when he first departs.
    as a VWP entrant. We address the first argument only and
    express no opinion on the second.
    13
    Not surprisingly, DHS’s own practice aligns with this
    reading. It requires a VWP entrant to re-sign the I-94W waiver
    form every time the noncitizen enters the country. See Form I-
    94W Nonimmigrant Visa Waiver Arrival/Departure Record,
    U.S.         Customs        and         Border         Protection,
    https://www.cbp.gov/sites/default/files/assets/documents/201
    8-Mar/700120%20-%20CBP%20Form%20I-
    94W%20ENG%20%281216%29%20-
    %20FINAL%20%28SAMPLE%29.pdf (last visited Apr. 28,
    2023) (“This form must be completed by every nonimmigrant
    visitor not in possession of a visitor’s visa who is a national of
    one of the countries enumerated in 8 C.F.R. [§] 217.”). This
    repetition would be unnecessary if signing the form once
    caused the waiver to apply in perpetuity.
    To read the waiver provision otherwise would create
    illogical results. Consider a tourist who visits under the VWP
    and signs the waiver at age 18. She departs the U.S. and returns
    to her home country before the 90 days are up. A few years
    later she attends graduate school in the U.S., after properly
    obtaining a student visa, and again timely leaves the country
    before her visa expires. A decade later her U.S. citizen spouse
    files an immediate relative petition on her behalf. DHS
    approves the petition, and she is admitted into the U.S. as a
    lawful permanent resident. After she has lived in the U.S. for
    years as a lawful permanent resident, DHS decides she is
    deportable and serves her with a notice referring her to asylum-
    only proceedings based on the VWP waiver she signed at age
    18. Which rules should govern her removal proceedings: the
    terms of the VWP, those governing her student visa, or the
    added protections she receives as a lawful permanent resident?
    It would be illogical to conclude that removal proceedings
    should be governed by her VWP-entry rather than her later
    14
    entry as a lawful permanent resident. See Amici Br. at 13
    (highlighting the same absurdity in a similar hypothetical).
    Similarly, it would be illogical for Kosh to be bound by a
    previous VWP entry if he re-entered in 2005 as an asylee and
    did not re-sign the waiver contained in the I-94W Form.
    Thus we hold that Kosh’s waiver to contest the basis of
    his removal applied at most for the duration from his entry in
    2001 until his departure in 2005. Cf. Freeman v. Gonzales, 
    444 F.3d 1031
    , 1036 (9th Cir. 2006) (applying reasonable limits to
    the waiver and declining to “read the VWP no-contest
    restriction into the adjustment of status procedural regime,
    effectively denying VWP applicants the procedural due
    process all other applicants enjoy, when Congress has not done
    so explicitly”). When Kosh re-entered in 2005, he became
    subject to any new agreements he made with DHS at that time.
    If the terms of his new agreement do not include a waiver of
    all non-asylum claims, then he is entitled to a complete-
    jurisdiction proceeding—where he can pursue his adjustment
    claim—on remand.
    Kosh submits that he re-entered in 2005 as an asylee
    using his refugee travel document and did not re-enter under
    the VWP. The INA authorizes DHS to provide these travel
    documents to asylees so that they may travel abroad. See 
    8 C.F.R. § 223.1
    . When an asylee returns, he must present the
    document and “shall be accorded the immigration status
    endorsed in his or her refugee travel document.” 
    8 C.F.R. § 223.3
    (d)(2)(i). Kosh applied for and received a government-
    issued refugee travel document listing his status as an “asylee.”
    A.R. 36. And he alleges he used that document, rather than a
    fake Portuguese passport, to re-enter the United States in 2005.
    15
    The evidence in the record is short of complete but
    supports Kosh’s description of events. In his application and
    at the hearing before the IJ, Kosh said he had most recently
    entered the United States through New York in 2005 as an
    asylee. He supported his testimony with the record of his
    departure on May 16, 2005 and a copy of his refugee travel
    document that lists his “class” as “asylee.” A.R. 36. On
    remand, the IJ and BIA should consider evidence regarding
    Kosh’s alleged 2005 travel and re-entry and determine
    whether, if at all, he was admitted as an asylee or as a VWP
    entrant. If he traveled and was re-admitted as the former, then
    his 2001 waiver cannot apply to the subsequent asylee entry,
    and he is entitled to a complete-jurisdiction removal
    proceeding.
    *     *      *
    For these reasons, we grant Kosh’s petition for review,
    vacate the BIA’s decision, and remand for further proceedings
    consistent with this opinion.
    16
    PORTER, Circuit Judge, concurring in part and dissenting in
    part.
    I concur with the majority opinion except for its
    conclusion in Section III.c that Kosh is entitled to anything
    more than an asylum-only proceeding.
    Kosh argues that although he fraudulently entered the
    United States under the Visa Waiver Program, he is no longer
    bound by his VWP waiver because he subsequently left and
    then re-entered the United States. The majority accepts Kosh’s
    reentry argument, but neither he nor the majority have adduced
    any authority supporting it. The majority simply asserts that it
    would be “illogical” to hold Kosh to his VWP waiver. Maj. Op.
    at 10-13. Under the majority’s theory, the mere act of leaving
    and reentering somehow erased Kosh’s fraudulent history and
    VWP waiver, so he should now be considered an asylee
    afforded more rights. But no law supports the notion that
    departure and reentry changed Kosh’s status in any way.
    Our precedent is not so cavalier about fraudulent VWP
    entrants. Just last year, we held that:
    [A]n alien’s attempt to enter the United States
    under the VWP by presenting fraudulent travel
    documents subjects that alien to the terms of the
    VWP. Those terms limit the alien to asylum-only
    proceedings. It makes no difference if the alien
    violated the VWP by overstaying after lawful
    entry . . . or by using fraudulent documents to
    enter or to attempt to enter the United States
    under the VWP. Once the alien has attempted to
    benefit from the VWP, he or she is bound by its
    terms.
    1
    Shkembi v. Att’y Gen., 
    41 F.4th 237
    , 243 (3d Cir. 2022).
    Lacking any textual justification to ignore Shkembi’s clear rule
    statement, I would hold Kosh to the terms of his VWP waiver.
    Kosh also argues that the grant of asylum status in 2001
    replaced his VWP status entirely, again requiring DHS to place
    him in removal proceedings. But the “grant” of asylum status
    no more erased Kosh’s prior status as a fraudulent VWP
    entrant than did his subsequent departure and reentry; it merely
    added to it. A VWP entrant granted asylum is still a VWP
    entrant, so if his asylum status is removed, he remains subject
    to the VWP conditions.
    The INA refers to “adjustment” of status when it means
    to displace one status with another, such as an “adjust[ment] to
    the status of an alien lawfully admitted for permanent
    residence.” 
    8 U.S.C. § 1159
    (b). To “grant” is to give or confer.
    Black’s Law Dictionary (11th ed. 2019). By contrast, to
    “adjust” an alien’s status is to adapt or conform it to a particular
    use. 
    Id.
     Applying the canon of meaningful variation, we should
    recognize the distinction between “granting” and “adjusting”
    an alien’s status, as the Ninth Circuit did in Bare v. Barr, 
    975 F.3d 952
     (9th Cir. 2020). See also, A. Scalia & B. Garner,
    Reading Law 170 (2012) (“[W]here [a] document has used one
    term in one place, and a materially different term in another,
    the presumption is that the different term denotes a different
    idea.”).
    In Bare, the court considered whether the grant of asylee
    status replaced or merely added to the petitioner’s status as a
    stowaway. Because “grant” and “adjust” mean different things,
    the court held that a grant of asylum does not terminate an
    2
    alien’s status as a stowaway. 
    Id. at 969-72
    . The same
    definitions and logic apply to VWP entrants such as Kosh. The
    majority does not address the difference between “granting”
    and “adjusting” immigration status, but the distinction is valid,
    and we should honor it.
    “Entering or attempting to enter the United States under
    the VWP by using fraudulent documents from a VWP-
    participating country violates the VWP and subjects that alien
    to the terms of the VWP, which includes the restriction to
    asylum-only proceedings.” Shkembi, 41 F.4th at 242. Because
    the majority creates an atextual exception to that rule, I
    respectfully dissent.
    3