Abraham Saldivar v. Jefferson Sessions , 877 F.3d 812 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ABRAHAM VILLALBA SALDIVAR, No. 13-72643
AKA Abraham Saldivar, AKA
Abraham Villalba, Agency No.
Petitioner, A077-979-428
v.
OPINION
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued August 2, 2016
Submitted November 1, 2017
Pasadena, California
Filed November 7, 2017
Before: Stephen Reinhardt, Alex Kozinski,
and Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge Reinhardt;
Dissent by Judge Kozinski
2 SALDIVAR V. SESSIONS
SUMMARY*
Immigration
The panel granted Abraham Villalba Saldivar’s petition
for review of the Board of Immigration Appeals’ decision
holding that Saldivar was statutorily ineligible for
cancellation of removal for failure to establish seven years
continuous residence in the United States after being
“admitted in any status,” and vacated and remanded.
For the purposes of the appeal, the panel assumed that
Saldivar was “waved through” at a port of entry, and
reaffirmed that an alien is “admitted” when he presents
himself for inspection and is waved through a port of entry.
The panel held that the term “in any status” plainly
encompasses every status recognized by immigration statutes,
lawful or unlawful. The panel therefore concluded that
Saldivar was statutorily eligible for cancellation of removal
because he established continuous residence in the United
States for more than seven years after his admission.
Dissenting, Judge Kozinski wrote that the majority defies
structure, precedent and common sense by interpreting
immigration status to mean both lawful and unlawful status.
Judge Kozinski concluded that the only sensible way to read
the term status is to refer to one of several specific lawful
categories, and that the majority creates an intra-circuit
conflict with Lai Haw Wong v. INS, 474 F.2d 739, 742 (9th
Cir. 1973), where the court explained that “mistaken
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
SALDIVAR V. SESSIONS 3
admission conferred no status, permanent resident or
otherwise.” Further, Judge Kozinski wrote that if any doubt
remains about the meaning of status, the court should defer
under Chevron to the BIA’s interpretation.
COUNSEL
Patrick F. Valdez (argued), Valdez Law Firm, Inglewood,
California, for Petitioner.
Sergio Sarkany (argued), Trial Attorney; Kiley Kane, Senior
Litigation Counsel; United States Department of Justice,
Washington, D.C.; for Respondent.
OPINION
REINHARDT, Circuit Judge:
Abraham Villalba Saldivar (“Saldivar”), a native and
citizen of Mexico, petitions for review of a decision by the
Board of Immigration Appeals (“BIA”). In an unpublished,
single-member decision, the BIA held that he was statutorily
ineligible for cancellation of removal because he could not
establish seven years of continuous residence in the United
States after having been “admitted in any status.” 8 U.S.C.
§ 1229b(a)(2). Saldivar was “admitted” in 1993 when he was
waved across the border after inspection by an immigration
officer. Therefore, we must address only whether this
“admission” was “in any status.” Because the phrase “in any
status” plainly encompasses every status recognized by
immigration statutes, lawful or unlawful, we hold that
Saldivar’s procedurally regular admission in 1993 was an
4 SALDIVAR V. SESSIONS
admission in any status under § 1229b(a)(2) and grant his
petition for review.
FACTUAL AND PROCEDURAL BACKGROUND
Saldivar entered the United States in 1993 as a ten-year-
old child when he was “waved through inspection” by an
officer at the port of entry in San Ysidro, California. In 2001,
Saldivar married Desiree Luzano, a United States citizen. The
couple has three children, who are also U.S. citizens. On
October 11, 2006, Saldivar adjusted his status to lawful
permanent resident (“LPR”). About six years later, on
September 25 and 26, 2012, he was convicted in California
Superior Court of possession of methamphetamine and
possession of paraphernalia used for smoking a controlled
substance.
On November 1, 2012, the U.S. Department of Homeland
Security served Saldivar with a Notice to Appear, alleging
that he was removable pursuant to 8 U.S.C.
§ 1227(a)(2)(B)(i) as a noncitizen convicted of a controlled
substance violation. At Saldivar’s hearing, the Immigration
Judge (“IJ”) found that the charge in the Notice to Appear
was proven by clear and convincing evidence, rendering him
removable.
Saldivar applied for cancellation of removal pursuant to
8 U.S.C. § 1229b(a). Before conducting a hearing on the
application for cancellation of removal, the IJ ordered the
parties to submit briefs addressing whether Saldivar was
statutorily eligible for that form of relief. Based on the
written submissions, and without taking any evidence or
testimony as to whether Saldivar was in fact “waved through
the border” in 1993, the IJ determined that he was ineligible
SALDIVAR V. SESSIONS 5
for cancellation of removal as a matter of law. He reasoned
that even if Saldivar had been waved through in 1993, he still
could not establish the requisite seven years of continuous
residence in the United States after being “admitted in any
status” under § 1229b(a)(2). According to the IJ, Saldivar’s
“procedurally correct inspection and admission” in 1993
could not be considered an admission “in any status” because
“mistaken admissions do not confer a status, either permanent
or otherwise.” Nor could Saldivar rely on his LPR status to
satisfy the seven-year continuous residency requirement: his
controlled substance violation cut off his period of continuous
residence approximately six years after he adjusted his status
to LPR.
The BIA affirmed the IJ’s decision. It rejected Saldivar’s
argument that he was “admitted in any status” in 1993 when
he was waved across the border. Relying on In re Blancas-
Lara, 23 I. & N. Dec. 458, 460 (BIA 2002), the BIA
concluded that an “admission with procedural regularity,”
such as being waved through the border by an immigration
officer, “is not tantamount to admission ‘in any status,’ either
immigrant or nonimmigrant.” Therefore, it held, Saldivar
could not establish continuous residence for seven years after
being admitted in any status and was not eligible for
cancellation of removal. Saldivar timely petitioned for
review.
STANDARD OF REVIEW
“Because the BIA wrote its own decision and did not
adopt the IJ’s decision, we review the BIA decision only, not
the IJ’s decision.” Aden v. Holder, 589 F.3d 1040, 1043 (9th
Cir. 2009). We review de novo the BIA’s determination of
6 SALDIVAR V. SESSIONS
legal questions. Vitug v. Holder, 723 F.3d 1056, 1062 (9th
Cir. 2013).
ANALYSIS
In order to establish eligibility for cancellation of
removal, Saldivar must demonstrate that he: “(1) has been an
alien lawfully admitted for permanent residence for not less
than five years, (2) has resided in the United States
continuously for seven years after having been admitted in
any status, and (3) has not been convicted of any aggravated
felony.” 8 U.S.C. § 1229b(a). The parties do not dispute that
Saldivar satisfies the first and third requirements. The only
dispute is whether Saldivar was “admitted in any status”
when he entered the United States in 1993.
A. Saldivar was “admitted” in 1993 when he was waved
through the border.
For purposes of this appeal, we assume that Saldivar
entered the United States in 1993 and that he was “waved
through” the port of entry by an immigration officer.1 We
reaffirm that an alien is “admitted” when he presents himself
for inspection and is waved through a port of entry, in
accordance with our precedent and the BIA’s longstanding
1
Saldivar has consistently maintained that he was waved across the
border in 1993, but as the government points out, “the representations
made regarding this alleged entry were solely set forth by counsel” and are
not clearly established by the record. That is because, before conducting
an evidentiary hearing, the IJ decided that Saldivar was statutorily
ineligible for cancellation of removal, even if he was waved across the
border in 1993. The BIA agreed, concluding that such an entry, if it
occurred, did not satisfy admission “in any status” as a matter of law.
Accordingly, no evidentiary hearing was ever held.
SALDIVAR V. SESSIONS 7
interpretation of “admission.” See Hing Sum v. Holder,
602 F.3d 1092, 1100–01 & n.7 (9th Cir. 2010); In re
Areguillin, 17 I. & N. Dec. 308, 309–310 (BIA 1980)
(concluding that respondent was “admitted” when “an
immigration officer at the port of entry looked inside the car,
asked the driver a question, then permitted the car and its
occupants [including respondent] to proceed into the United
States”). In Areguillin, the BIA explained that “‘[a]dmission’
occurs when the inspecting officer communicates to the
applicant that he has determined that the applicant is not
inadmissible . . . [by] permit[ing] the applicant to pass
through the port of entry.” Id. at 310 n.6. As we have
explained previously, the BIA has consistently “defined
‘admission’ in procedural terms.” Hing Sum, 602 F.3d at
1100 & n.7 (9th Cir. 2010). When Congress adopted the
Illegal Immigration Reform and Immigrant Responsibility
Act (“IIRIRA”) amendments to the Immigration and
Nationality Act (“INA”) in 1996, it “expressly incorporate[d]
this procedural definition” of “admission” at 8 U.S.C.
§ 1101(a)(13)(A). Id.2 As both parties agree, a procedurally
2
After IIRIRA, “admitted” and “admission” were statutorily defined
to mean “with respect to an alien, the lawful entry of the alien into the
United States after inspection and authorization by an immigration
officer.” 8 U.S.C. § 1101(a)(13)(A). We have explained that “the plain
meaning of the term ‘admission’ in § 1101(a)(13)(A) . . . refers to a
procedurally regular admission and not a substantively lawful admission.”
Hing Sum, 602 F.3d at 1096; see also In re Quilantan, 25 I. & N. Dec.
285, 290 (BIA 2010) (reconfirming that procedurally regular admission
constitutes an “admission” as defined by §1101(a)(13)(A)). Therefore,
although the IIRIRA did not exist in 1993 when Saldivar entered the
United States, the IIRIRA essentially codified the definition of
“admission” in Areguillin, which has consistently governed since 1980.
Regardless of whether an alien entered the United States before or after
IIRIRA, procedural lawfulness, meaning inspection and admission by an
8 SALDIVAR V. SESSIONS
regular admission requires only “an inspection and
authorization by an immigration officer.” Id. Thus Saldivar
was “admitted” when he was waved through the border in
1993.
B. Saldivar was admitted “in any status” in 1993.
Because Saldivar was undisputedly “admitted” in 1993,
we must decide whether that admission was “in any status.”
We conclude that it was.
The government erroneously contends that we should
defer to the BIA’s construction of 8 U.S.C. § 1229b(a)(2)
under Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 844 (1984). Chevron requires us
to accept the BIA’s reasonable constructions of statutory
terms in the INA, but only if those terms are ambiguous. See
Henriquez-Rivas v. Holder, 707 F.3d 1081, 1087 (9th Cir.
2013) (en banc). Here, because the text of the INA
“unambiguously bars” the BIA’s interpretation, “that is the
end of the analysis,” and we must remand so that the Board
may apply § 1229b(a)(2) in light of our holding.3 See
immigration officer, “and not substan[tive lawfulness], is determinative
of an ‘admission’ into the United States.” Hing Sum, 602 F.3d at 1101.
3
The government maintains that the statute is ambiguous and
therefore we should defer to the BIA’s reasonable interpretation.
Although we normally do not accord Chevron deference to an unpublished
decision issued by a single board member, the government asserts that
Chevron deference is appropriate in this case because the BIA’s decision
was based on its previously published and precedential decision, In re
Blancas-Lara, 23 I. & N. Dec. 458 (BIA 2002).
Even if § 1229b(a)(2) were ambiguous—and it is not—the BIA’s
decision in this case would not be entitled to Chevron deference based on
SALDIVAR V. SESSIONS 9
Valenzuela Gallardo v. Lynch, 818 F.3d 808, 815 (9th Cir.
2016); see also Mellouli v. Lynch, 135 S. Ct. 1980, 1989
(2015) (explaining that where the BIA’s interpretation
“makes scant sense,” it “is owed no deference under”
Chevron doctrine).
its citation to Blancas-Lara. An unpublished decision of a single board
member is entitled to Chevron deference based on its citation to a previous
decision only if “the precise issue of statutory interpretation had been
answered by the BIA in a published decision that carried the force of law.”
Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1014 (9th Cir. 2006),
abrogated on other grounds by Medina-Nunez v. Lynch, 788 F.3d 1103,
1104–05 (9th Cir. 2015). Blancas-Lara, however, “does not directly
govern the situation presented here because it dealt with an alien who was
‘admitted to the United States as the holder of a border crossing card’ and
clearly had the status of a nonimmigrant.” Tula-Rubio v. Lynch, 787 F.3d
288, 294 n.4 (5th Cir. 2015). It did not address the situation before us now,
in which an alien was lawfully admitted in an unlawful status. It merely
held that the use of “any” in § 1229b(a)(2) signified that Congress
“intended . . . to include” and did include “admissions of nonimmigrants”
in that provision. 23 I. & N. Dec. at 459–60. In fact, it is important to note
that the BIA’s broad definition of “status” in Blancas-Lara is actually
wholly consistent with our interpretation of the statute’s unambiguous
language. See id.; infra n.6.
At the very most, the BIA’s unpublished decision in this case is
entitled to Skidmore deference, under which we must consider “the
validity of the BIA’s reasoning, its thoroughness, and overall
persuasiveness.” Garcia-Quintero, 455 F.3d at 1015. For the reasons
given in this opinion, including the BIA’s misinterpretation of Blancas-
Lara itself, see Henriquez-Rivas, 707 F.3d at 1083 (granting petition for
review where BIA “misapplied its own precedent”), we do not find the
BIA’s interpretation of § 1229b(a)(2) to be persuasive or based on valid
reasoning. Therefore, even if the statute were ambiguous, the BIA’s
interpretation could not govern, regardless of which level of deference it
is due.
10 SALDIVAR V. SESSIONS
Only the Fifth Circuit has previously considered the
precise issue before us, and that court held unequivocally that
the statute is unambiguous. We agree with our fellow circuit
and its reasoning. Accordingly, we join the Fifth Circuit in
concluding that the “plain meaning of the phrase ‘any status’”
unambiguously includes “all states or conditions, of whatever
kind, that an alien may possess under the immigration laws,”
including any lawful or unlawful status. Tula Rubio,
787 F.3d at 293, 294 n.5.
“Although the word ‘status’ is not defined in the INA, its
general meaning is ‘[a] person’s legal condition.’” Id. at 293
(quoting Black’s Law Dictionary 1542 (10th ed. 2014)); see
also In re Blancas-Lara, 23 I. & N. Dec. at 460 (“‘Status’ is
a term of art, which is used in the [INA] in a manner
consistent with the common legal definition,” i.e. “a
‘[s]tanding; state or condition,’ and as ‘[t]he legal relation of
[an] individual to [the] rest of the community.’” (alterations
in original) (quoting Black's Law Dictionary 1264 (5th ed.
1979))).4 In § 1229b(a)(2), “status” is modified by the word
“any,” which, when “[r]ead naturally, . . . has an expansive
meaning, that is, ‘one or some indiscriminately of whatever
kind.’” Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 219
(2008) (quoting United States v. Gonzales, 520 U.S. 1, 5
4
Unlawful status is clearly a “state or condition” and a descriptor of
an individual’s “legal relation . . . to the rest of the community” and thus
within the BIA’s definition of “status” in Blancas-Lara. 23 I. & N. Dec.
at 460 (quoting Black’s Law Dictionary 1264 (5th ed. 1979)). Contrary
to the dissent’s contention, Blancas-Lara’s further explanation of status
as denoting “someone who possesses a certain legal standing, e.g.
classification as an immigrant or nonimmigrant,” does not limit the
universe of potential “state[s] or condition[s]” for purposes of immigration
law to solely those two conditions. See id. “E.g.” is not, incidentally,
synonymous with “i.e.”
SALDIVAR V. SESSIONS 11
(1997)); see also Do Sung Uhm v. Humana, Inc., 620 F.3d
1134, 1153 (9th Cir. 2010) (“The word ‘any’ is generally
used in the sense of ‘all’ or ‘every’ and its meaning is most
comprehensive.” (quoting Fleck v. KDI Sylvan Pools Inc.,
981 F.2d 107, 115 (3d Cir.1992))).
Because Congress “did not add any language limiting the
breadth of [the] word ‘any’” to § 1229b(a)(2), we must read
the phrase “in any status” as “referring to all” states or
conditions that an alien may possess under the INA, including
both lawful and unlawful status. See Gonzales, 520 U.S. at 5
(emphasis added); Tula-Rubio, 787 F.3d at 293. Indeed, the
INA repeatedly refers to both “unlawful” or “lawful” status,
meaning that the phrase “in any status” elsewhere in the Act
must encompass unlawful status. See, e.g., 8 U.S.C. § 1644
(“Notwithstanding any other provision of Federal, State, or
local law, no State or local government entity may be
prohibited, or in any way restricted, from sending to or
receiving from the Immigration and Naturalization Service
information regarding the immigration status, lawful or
unlawful, of an alien in the United States.”(emphasis added));
8 U.S.C. § 1255a(a)(2)(A), (B) (requiring certain noncitizens
to establish continuous residence in an “unlawful status” for
adjustment purposes); 8 U.S.C. § 1365(b) (referencing
“unlawful status”); see also Tula-Rubio, 787 F.3d at 295 &
n.6 (citing provisions in the INA that refer to “lawful status,”
and noting that such provisions would be superfluous if
“status” is equivalent to “lawful status”). The fact that other
provisions of the INA use the word “status” to refer to
unlawful immigration status confirms that the phrase “any
status” must be read to encompass unlawful, as well as
lawful, status. See Sorenson v. Sec’y of Treasury of U.S.,
475 U.S. 851, 860 (1986) (“The normal rule of statutory
construction assumes that ‘identical words used in different
12 SALDIVAR V. SESSIONS
parts of the same act are intended to have the same
meaning.’”) (quoting Helvering v. Stockholms Enskilda Bank,
293 U.S. 84, 87 (1934)); Tula-Rubio, 787 F.3d at 295.5
The government’s argument that “in any status” means
“in any lawful status” is facially incorrect. First, the word
“lawful” is conspicuously absent from the broadly inclusive
phrase “in any status” in § 1229b(a)(2). One need look no
further than § 1229b(a)(1), the immediately preceding
provision, to confirm that Congress understands the necessity
of using the word “lawful” or “lawfully” when it intends to be
restrictive. See 8 U.S.C. § 1229b(a)(1) (requiring that an alien
“has been an alien lawfully admitted for permanent residence
for not less than 5 years” to be eligible for cancellation of
removal) (emphasis added).6
5
The INA’s description of a form of relief as “adjustment of status”
also compels a broad reading of “in any status.” The relief is available to
some individuals who have lawful status and to some who have unlawful
status. 8 U.S.C. § 1229b(b); § 1255; § 1255a. “Adjustment of status”
presupposes, by its chosen language, that those lacking lawful status
possess a status that is then “adjust[ed] to” a different one. See, e.g.,
§ 1229b(b) (permitting the Attorney General to “adjust to the status of an
alien lawfully admitted for permanent residence,” with no requirement of
prior lawful status); 8 U.S.C. § 1255(c)(2) (providing for certain instances
in which those “in unlawful immigration status” at the time of filing an
application for adjustment may nevertheless adjust).
6
The language of § 1229b(a)(1) also reveals the flaw in the
government’s argument that an “inadvertent admission” cannot “accord
[an alien] any status” under our decision in Lai Haw Wong v. INS,
474 F.2d 739 (9th Cir. 1973). In that case, we affirmed the BIA’s decision
that the “admission [of Wong and her sons] on visas to which they were
not entitled conferred no lawful status . . . and that they could not rely on
each other’s admission to gain section 241(f) status.” Id. at 741. Wong,
however, evaluated the family’s eligibility for relief from removal under
(what was then) INA § 241(f), 8 U.S.C. § 1251(f), under which “an alien
SALDIVAR V. SESSIONS 13
Second, the government argues that unless we read “in
any status” to mean “in any lawful status,” we will render the
phrase “in any status” surplusage. Again, the immediately
antecedent provision, § 1229b(a)(1), reveals the government’s
error. The phrase “in any status” is not surplusage: instead, it
serves to distinguish § 1229b(a)(2) from § 1229b(a)(1), which
requires that an alien seeking cancellation of removal be
“lawfully admitted for permanent residence for not less than
5 years.” As the Fifth Circuit has rightly observed, “this
otherwise admissible at the time of entry who is the spouse, parent, or a
child of a United States citizen or of an alien lawfully admitted for
permanent residence” was not deportable. Id. at 741 n.2 (emphasis added).
Section 241(f) makes no reference to “status.” In context, our statement
that the “mistaken admission conferred no status, permanent resident or
otherwise,” pertained only to their lack of lawful status, i.e. permanent
resident or otherwise, e.g. § 241(f) status, § 1101(a)(15)(B) temporary
visitor status, or § 1101(a)(15)(D) alien crewman status. See id. at 742; see
generally 8 U.S.C. § 1101(a)(15) (1970) (listing various “classes of
nonimmigrant aliens”). The opinion did not purport to delineate the
meaning of “status” in the INA. Its single, passing reference to “no
status,” in determining whether any family member’s admission qualified
another for § 241(f) status, is simply inapposite in interpreting
§ 1229b(a)(2). “[T]he language of an opinion is not always to be parsed
as though we were dealing with language of a statute.” Reiter v. Sonotone
Corp., 442 U.S. 330, 341 (1979).
Since 1973, no court has ever relied on Lai Haw Wong to construe the
meaning of “status” in the INA, much less to construe unlawful status as
not “any status.” Rather, we have described the case in accordance with
our understanding here, as “approv[ing] the BIA’s ruling that” the Wongs’
admission “conferred no lawful status on the aliens for purposes of
obtaining relief from deportation.” Monet v. INS, 791 F.2d 752, 753 (9th
Cir. 1986) (emphasis added); see also Kyong Ho Shin v. Holder, 607 F.3d
1213, 1217 (9th Cir. 2010) (citing Lai Haw Wong to support the
proposition that a noncitizen “was never lawfully admitted for permanent
residence,” making derivative visa grants improper (internal quotation
marks omitted)).
14 SALDIVAR V. SESSIONS
structure very clearly indicates that Congress intended to
establish two distinct duration requirements—one that
demands a period following admission in any status and one
that demands a [shorter] period of residency after admission”
to LPR status. Tula-Rubio, 787 F.3d at 295. Unlike the
narrower preceding provision in § 1229b(a)(1), which
requires lawful admission to LPR status for at least five years,
Congress chose to apply § 1229b(a)(2)’s seven-year
continuous residency requirement to admission in any status,
lawful or unlawful.7
7
The government’s reliance on our prior precedents interpreting
§ 1229b(a)(2) is misplaced. Citing Vasquez de Alcantar v. Holder,
645 F.3d 1097, 1102–03 (9th Cir. 2011), it contends that we have
previously concluded that LPRs, like Saldivar, do not begin to accrue
continuous residence under § 1229b(a)(2) until they adjust to LPR status.
The government, however, overlooks a key distinction between Vasquez
and the present case: unlike Saldivar, who was unquestionably “admitted”
in 1993, the petitioner in Vasquez entered without inspection and was
never otherwise admitted. See id. at 1098. We concluded in Vasquez that
an alien who was never otherwise admitted could not be considered
“admitted in any status” when his I-130 visa petition was approved. See
id.; see also Garcia-Quintero, 455 F.3d at 1018–19 (concluding
acceptance into the Family Unity Program constitutes admission in any
status); Guevara v. Holder, 649 F.3d 1086, 1091–92 (9th Cir. 2011)
(holding employment authorization does not constitute admission in any
status); see also Tulia-Rubio, 787 F.3d at 291 & n.1 (noting that Vasquez,
Garcia-Quintero, and Guevara do not resolve the applicability of
§ 1229b(a)(2) to “wave through entry”).
None of these cases supports the government’s proposition that an
alien who was unquestionably “admitted” was not admitted “in any
status.” If anything, this line of precedent supports Saldivar’s argument,
because it interprets “admitted in any status” as being broader than simply
“admitted” and as allowing noncitizens who do not go through regular
inspection and authorization to qualify. See Vasquez de Alcantar,
645 F.3d at 1101 (“[T]he clause “in any status” has been interpreted to
create alternative methods for aliens, who do not enter after inspection
SALDIVAR V. SESSIONS 15
The structure of § 1229b thus confirms what was already
unambiguously clear from the plain meaning of the text: the
statute requires continuous presence for seven years after a
procedurally lawful admission in any immigration status,
lawful or unlawful.8 Perhaps, had Congress required
admission “in any status whatsoever” in § 1229b(a)(2), the
government might have acknowledged that unlawful status
was covered by the phrase it now finds ambiguous. However,
as we have explained, the term “any,” in its plain meaning, is
all-inclusive and any further language would be pure
surplusage. In short, any is any, and a status is a status, be it
lawful or unlawful.
CONCLUSION
Under the facts as we assume them to be, Saldivar was
admitted to the United States in 1993, albeit in an unlawful
status. Because he established continuous residence in the
United States for more than seven years after this admission,
the BIA erred as a matter of law in concluding that Saldivar
was statutorily ineligible for cancellation of removal.
Saldivar’s petition for review is GRANTED, and we
VACATE and REMAND for further proceedings consistent
with this opinion.
and authorization, to meet the “admitted in any status” requirement of
§ 1229b(a)(2).” (emphasis added)).
8
Because we conclude that Saldivar’s procedurally regular admission
constituted an admission “in any status” as a matter of law, we need not
reach his argument that he should have been presumed to have been
admitted in immigrant status pursuant to 8 U.S.C. § 1184(b).
16 SALDIVAR V. SESSIONS
KOZINSKI, Circuit Judge, dissenting:
Words like “sanction” and “cleave” are contronyms—
their own opposites. My colleagues create a new one today.
Going forward—in defiance of structure, precedent and
common sense—immigration status means both lawful status
and unlawful status.
Section 1229b(a)(2) of the INA makes an alien eligible
for cancellation of removal if he “has resided in the United
States continuously for 7 years after having been admitted in
any status.” 8 U.S.C. § 1229b(a)(2). Fifteen years ago, the
Board of Immigration Appeals explained that “‘[s]tatus’ . . .
denotes someone who possesses a certain legal standing, e.g.,
classification as an immigrant or nonimmigrant.” In re
Blancas-Lara, 23 I. & N. Dec. 458, 460 (BIA 2002). This
means that aliens lacking either classification when they enter
the country possess no status under the immigration laws.
That’s the only sensible way to read the INA. When an
actor says “wish me luck” before an audition, he’s not asking
his friend to wish him both good and bad luck. Or when the
best man at a wedding toasts the newlyweds’ health, he’s not
wishing them both good and ill health. Context makes clear
that those terms denote only something positive. See Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation
of Legal Texts 167 (2012). We interpret the INA’s “any
status” similarly: It must refer to one of several specific
lawful categories. Otherwise, why mention status at all? 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 1229b(a)(2) and omitted any reference to status.
SALDIVAR V. SESSIONS 17
In a vain effort to avoid this surplusage problem, the
majority argues that section 1229b(a)(2) of the INA doesn’t
use the phrase “lawfully admitted,” while the preceding
section 1229b(a)(1) does—thus (according to the majority)
indicating that Congress meant “any status” to include
unlawful status. The Fifth Circuit bought the same specious
argument in Tula Rubio v. Lynch, 787 F.3d 288 (5th Cir.
2015). Rubbish. Section 1229b(a)(1) provides that aliens
seeking cancellation of removal must have been “lawfully
admitted for permanent residence for not less than 5 years.”
8 U.S.C. § 1229b(a)(1) (emphasis added). This refers to the
point in time when the alien is granted permanent resident
status, which is not necessarily when he crosses the border.
Section 1229b(a)(2), by contrast, refers to an alien’s
classification when he first enters the country. Our law
defines many entry categories that do not provide for
permanent resident status—those that cover tourists, students,
ambassadors and so forth. See 8 U.S.C. § 1101(a)(15). The
processes the statute references—initial admission into the
U.S. and acquisition of permanent resident status—don’t
always occur simultaneously. An alien might enter the
country with an F-1 student visa, subsequently receive an
employment visa and eventually wish to convert that visa to
a green card. Section 1229b(a)(1) refers to this legal
admission to permanent resident status rather than to the
physical admission at the border.
The statute’s duration requirements support this reading:
To be eligible for cancellation of removal, an applicant must
have held some sort of immigration status for seven years, but
permanent resident status for only five. Thus, admission to
permanent resident status can occur long after entering the
country. It doesn’t make sense to contrast “lawfully admitted
for permanent residence” with “admitted in any status”
18 SALDIVAR V. SESSIONS
because they refer to different steps that may occur at
different times and involve different processes. “Lawfully
admitted for permanent residence” refers to the alien’s
change of legal status. It has nothing to do with border
crossing.
The fundamental distinction in this case—status versus
nonstatus—has long existed in our precedent. In Lai Haw
Wong v. INS, 474 F.2d 739 (9th Cir. 1973), we explained that
“mistaken admission conferred no status, permanent resident
or otherwise, on [the aliens in question].” Id. at 742
(emphasis added). This can’t be squared with the majority’s
ruling that if someone is merely waved across the border with
“procedural regularity,” he acquires a status for purposes of
the INA. Under Lai Haw Wong, such a person holds no
status at all. My colleagues argue that the Wong family’s
entry process was very different from Saldivar’s, but that has
no bearing on the critical interpretive issue—whether “any
status” includes unlawful status. The majority creates an
intra-circuit conflict with Lai Haw Wong.
If any doubt remains about the meaning of status,
Chevron requires that we defer to the agency. In a published
opinion over a decade ago, the BIA interpreted the term as
limited to immigrant and nonimmigrant status—not people
who commit immigration fraud by presenting false papers at
a border checkpoint. See Blancas-Lara, 23 I & N at 460.
Limiting any status to legal status is not merely a plausible
meaning, it is the only plausible meaning. The majority’s
claim that “any status” unambiguously expresses the opposite
meaning (and thus that the BIA’s definition isn’t entitled to
Chevron deference) doesn’t pass the snicker test.
SALDIVAR V. SESSIONS 19
Finally, the majority’s interpretation is profoundly
illogical. My colleagues seem to believe that Congress made
an immigration benefit available to someone who fools the
immigration authorities at a border checkpoint, but not
someone who scales a border fence or tunnels under a wall.
It’s nonsense to think that Congress would treat aliens who
deceive the immigration authorities better than those who
sneak in hidden in a cargo van. What purpose would such a
distinction serve? This ruling also creates perverse
incentives: Potential deportees will claim, like Saldivar, that
they were waved in by a guard regardless of how they
actually entered. Obviously, there would be no record
contradicting them, so the incentive to lie would be powerful
and the chance of getting caught nil.
My colleagues misread the INA, trample our precedent
and turn their backs on Chevron, all to create a giant loophole
that will enable thousands to lie their way to relief that
Congress never intended them to have. The Fifth Circuit got
it wrong and the Ninth now follows them down the rabbit
hole. It’s time for another opinion.