Hing Sum v. Holder

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

YIN HING SUM, 

Petitioner, No. 05-75776

v.

 Agency No.

A042-759-938

ERIC H. HOLDER JR., Attorney

General, OPINION

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

March 12, 2010—San Francisco, California

Filed April 23, 2010

Before: J. Clifford Wallace, Susan P. Graber, and

M. Margaret McKeown, Circuit Judges.

Opinion by Judge McKeown;

Concurrence by Judge Graber

6065

SUM v. HOLDER 6067

COUNSEL

Marie Kayal and Martin Avila Robles, Immigration Practice

Group, San Francisco, California, for the petitioner.

Blair O’Connor, United States Department of Justice, Civil

Division/Office of Immigration Litigation, Washington, D.C.,

for the respondent.

6068 SUM v. HOLDER

OPINION

McKEOWN, Circuit Judge:

We consider a non-citizen’s eligibility for a waiver of inad-

missibility under § 212(h) of the Immigration and Nationality

Act (“INA”), 8 U.S.C. § 1182(h), where he has been con-

victed of an aggravated felony after his admission for perma-

nent residence. Section 212(h), also referred to as the

“§ 212(h) waiver” or “§ 212(h) relief,” expressly bars from

relief a non-citizen who has “previously been admitted to the

United States as an alien lawfully admitted for permanent res-

idence” and later is convicted of an aggravated felony. Id. Yin

Hing Sum, a native of Hong Kong and citizen of China, was

denied a § 212(h) waiver because he was convicted of a quali-

fying offense after his admission as a lawful permanent resi-

dent (“LPR”).

Sum advances a curious position on appeal: namely, that

because he was never legally admitted for permanent resi-

dence in the first place, but rather procured his admission by

fraud or misrepresentation, the bar on § 212(h) relief does not

apply. In other words, he argues that his initial fraud should

save him now. We are not persuaded by this change-of-heart

approach and deny the petition for review. Having enjoyed

the benefits of LPR status, Sum cannot now shed his skin for

the purposes of seeking beneficial relief.

The term “admitted” carries special significance within the

regime of immigration statutes. Contrary to Sum’s position,

the previous “admission” to LPR status in § 212(h) does not

refer to an admission in substantive compliance with the

immigration laws, but rather an admission that is procedurally

regular in nature. In this regard we interpret the term “admit-

ted” as used in § 212(h), as distinct from the term “lawfully

admitted” as that phrase is defined by the statute. Because

Sum was “admitted” as an LPR in the sense of being

inspected and authorized at the port of entry, but later con-

SUM v. HOLDER 6069

victed, he is barred from § 212(h) relief. It may seem, at first

blush, an oxymoron to be “admitted” to the United States and

yet “inadmissible” at the same time. But such is the text of the

INA and the often opaque world of the immigration statutes.

BACKGROUND

Sum was admitted to the United States as an LPR in 1990.

Before obtaining residency, in December 1987, Sum was

arrested, and allegedly convicted, for criminal coercion in the

second degree, in violation of New York Penal Law § 135.60.

In June 2001, some ten years after his admission, Sum was

convicted of conspiracy to produce, use, or traffic in counter-

feit access devices, in violation of 18 U.S.C. § 371, and sen-

tenced to thirty-three months’ imprisonment.

Following Sum’s federal conviction, the government initi-

ated removal proceedings in December 2001, charging Sum

with removability for having been convicted of an aggravated

felony, for an offense relating to counterfeiting for which the

term of imprisonment is at least one year. See 8 U.S.C.

§§ 1227(a)(2)(A)(iii) (detailing grounds for removability),

1101(a)(43)(R) (defining aggravated felony). Sum conceded

removability in immigration court but argued that he was eli-

gible for adjustment of status, withholding of removal, and

relief under the Convention Against Torture. In conjunction

with his adjustment application, Sum sought a § 212(h)

waiver, arguing that he was not subject to the bar on § 212(h)

relief because he was actually inadmissible at the time he

obtained LPR status either because of his 1987 conviction or

because of his failure to disclose that conviction when he

entered as an LPR in 1990.1

1

The record does not establish that Sum was convicted of second-degree

criminal coercion in 1987, but only that he was arrested for this offense.

As a result, Sum cannot argue that a conviction for a crime of moral turpi-

tude rendered him inadmissible at the time he was admitted as an LPR.

Sum can still argue, however, that his failure to disclose his arrest ren-

6070 SUM v. HOLDER

On August 17, 2004, the immigration judge (“IJ”) denied

all of Sum’s applications for relief. With respect to Sum’s

application for a § 212(h) waiver, the IJ held there was “no

basis on which to conclude that [Sum’s] admission for perma-

nent residence was somehow in violation of law.” The IJ

found Sum ineligible for the waiver and pretermitted his

adjustment application. The Board of Immigration Appeals

(“BIA”) affirmed the IJ’s decision without opinion. Because

the BIA affirmed without opinion, we review the IJ’s decision

as the final agency determination. Lanza v. Ashcroft, 389 F.3d

917, 925 (9th Cir. 2004); see also 8 C.F.R. § 1003.1(e)(4)(ii).

ANALYSIS

I. THE § 212(h) WAIVER

A. BACKGROUND OF THE WAIVER

[1] Section 212(h) authorizes the Attorney General to

waive certain criminal grounds of inadmissibility, including a

crime involving moral turpitude, a single conviction of simple

possession of thirty grams or less of marijuana, multiple crim-

inal convictions, prostitution, and offenses by diplomats

asserting immunity from prosecution for serious criminal

activities. 8 U.S.C. § 1182(h); see also id. § 1182(a)(2)(F)

(authorizing waiver). Crucially for Sum, § 212(h) provides

one of the few forms of relief available to non-citizens who

have been convicted of aggravated felonies. Although

§ 212(h) does not itself waive an aggravated felony, it poten-

tially provides discretionary relief to non-citizens who other-

wise would be eligible for adjustment of status, but for certain

grounds of inadmissibility such as crimes of moral turpitude.

dered him inadmissible at the time he entered because of “fraud or will-

fully misrepresenting a material fact.” 8 U.S.C. § 1182(a)(6)(C)(i); see

also Forbes v. INS, 48 F.3d 439, 442 (9th Cir. 1995) (holding that “knowl-

edge of the falsity of a representation [regarding an arrest] is sufficient”

to establish inadmissibility).

SUM v. HOLDER 6071

[2] However, LPRs and non-LPRs are not eligible for the

§ 212(h) waiver on equal terms. As part of the 1996 immigra-

tion reform, Congress amended the statute to make it more

difficult for LPRs to obtain § 212(h) relief. Illegal Immigra-

tion Reform and Immigrant Responsibility Act of 1996

(“IIRIRA”), Pub. L. No. 104-208, div. C, § 348, 110 Stat.

3009 (amending 8 U.S.C. § 1182(h)). The statute provides

that “[n]o waiver shall be granted under this subsection in the

case of an alien who has previously been admitted to the

United States as an alien lawfully admitted for permanent res-

idence if . . . since the date of such admission the alien has

been convicted of an aggravated felony.” 8 U.S.C. § 1182(h).

Accordingly, § 212(h) waivers are available to non-LPRs con-

victed of aggravated felonies, or non-citizens who were con-

victed of an aggravated felony prior to their admission as

LPRs, but they are unavailable to non-citizens who were con-

victed of an aggravated felony after their admission as LPRs.

In re Michel, 21 I&N Dec. 1101, 1104 (BIA 1998) (en banc);

see also United States v. Arrieta, 224 F.3d 1076, 1080-81 &

n.2 (9th Cir. 2000). We have upheld this distinction against an

equal protection challenge as supported by a rational basis:

namely, the judgment that LPRs, who “enjoy substantial

rights and privileges not shared by other aliens” should be

held to “a higher standard and level of responsibility than

non-LPRs” and that aggravated felon LPRs are “less deserv-

ing of a ‘second chance’ than [nonLPRs].” Taniguchi v.

Schultz, 303 F.3d 950, 958 (9th Cir. 2002) (alteration in origi-

nal) (internal quotation marks omitted).

B. STATUTORY TEXT

[3] The crux of this appeal is whether, despite the arrest

Sum concealed at the time of his admission for permanent res-

idence, Sum is now ineligible to seek § 212(h) relief. The IJ

found that Sum was “previously admitted” for permanent resi-

dence within the meaning of § 212(h), had been convicted for

an aggravated felony after his admission, and was therefore

barred from seeking § 212(h) relief. Sum argues, however,

6072 SUM v. HOLDER

that because he acquired permanent residence through fraud

or misrepresentation, he was never lawfully admitted for the

purpose of the bar.

We review the proper construction of § 212(h) de novo,

Kankamalage v. INS, 335 F.3d 858, 861-62 (9th Cir. 2003),

employing all “traditional tools of statutory construction” to

determine “whether Congress has directly spoken to the pre-

cise question at issue.” Chevron, U.S.A., Inc. v. Natural Res.

Def. Council, Inc., 467 U.S. 837, 842, 843 n.9 (1984). “If

Congress has done so, [our] inquiry is at an end; [we] ‘must

give effect to the unambiguously expressed intent of Con-

gress.’ ” FDA v. Brown & Williamson Tobacco Corp., 529

U.S. 120, 132 (2000) (quoting Chevron, 467 U.S. at 843).

[4] Our analysis begins with the text. The statutory text

bears repeating here: “[n]o waiver shall be granted under this

subsection in the case of an alien who has previously been

admitted to the United States as an alien lawfully admitted for

permanent residence if . . . since the date of such admission

the alien has been convicted of an aggravated felony.” 8

U.S.C. § 1182(h). Despite its apparently redundant phrasing,

the text is divisible into two distinct phrases: namely, (1) “an

alien who has previously been admitted to the United States”

and (2) “as an alien lawfully admitted for permanent resi-

dence.” Id.; see Martinez v. Mukasey, 519 F.3d 532, 546 (5th

Cir. 2008) (parsing the statute in this manner). The first

phrase is controlling in this case. In other words, the applica-

tion of the bar turns on what it means to have “previously

been admitted” to the United States “as” an LPR.

This two-part structure is put in sharper relief when

§ 212(h) is read against the definitions provision of the INA,

which sets forth separate definitions for “admitted,” as used

in the phrases “previously been admitted to the United States”

and “lawfully admitted for permanent residence.” See 8

U.S.C. § 1101(a) (defining terms “[a]s used in this chapter”).

The statute defines “admission” in general as “the lawful

SUM v. HOLDER 6073

entry of the alien into the United States after inspection and

authorization by an immigration officer.” Id.

§ 1101(a)(13)(A); see also 8 C.F.R. § 1235.1 (setting forth

inspection procedures). The statute defines “lawfully admitted

for permanent residence” as “the status of having been law-

fully accorded the privilege of residing permanently in the

United States as an immigrant in accordance with the immi-

gration laws, such status not having changed.” 8 U.S.C.

§ 1101(a)(20).

When viewed in these terms, it becomes clear that the key

to understanding the statute is the general definition of “ad-

mission” under § 1101(a)(13)(A), which defines “admitted”

as used in the bar’s controlling phrase, “previously been

admitted.” The parties in turn have presented us with two pos-

sible approaches to this general definition of admission: one

procedural in nature, and one substantive in nature. If “admis-

sion,” or “lawful entry . . . into the United States,” is under-

stood procedurally, in the sense of referring to an inspection

and authorization by an immigration officer, § 212(h)’s bar

precludes non-citizens, like Sum, who successfully passed

themselves off as LPRs at the port of entry, regardless of

whether they are admissible in fact. If admission is under-

stood substantively, § 212(h)’s bar precludes only non-

citizens who were properly admissible as LPRs at the time of

entry, and not individuals like Sum who were admissible

through appearance alone.

[5] Addressing this issue of first impression in this circuit,

we conclude that the plain meaning of the term “admission”

in § 1101(a)(13)(A), and thus the term “previously been

admitted” in § 212(h), refers to a procedurally regular admis-

sion and not a substantively lawful admission.2 The First Cir-

2

The only prior decision to address this issue was vacated by the panel.

In Orozco v. Mukasey, 521 F.3d 1068 (9th Cir. 2008), vacated by 546 F.3d

1147 (9th Cir. 2008) (order), a panel of our court interpreted “admission”

in § 1101(a)(13)(A) to describe a substantively lawful entry into the

United States.

6074 SUM v. HOLDER

cuit came to the same conclusion, having construed the term

“previously . . . admitted” in § 212(h). Onwuamaegbu v.

Gonzales, 470 F.3d 405, 409 (1st Cir. 2006). The BIA also

interpreted the term in the context of § 212(h). In re Ayala, 22

I&N Dec. 398, 401 (BIA 1998) (en banc).3 Neither decision

approached the question, as we do, from the starting point of

the meaning of “admission” in the definition section of the

statute, § 1101(a)(13)(A), but the result is the same.

As an initial matter, although we have not considered the

meaning of “previously been admitted,” we have construed

the phrase “lawfully admitted for permanent residence” as

defined in the identical predecessor statute to § 1101(a)(20).

Monet v. INS, 791 F.2d 752, 753 (9th Cir. 1986). In Monet,

we held that this latter phrase must be read to contemplate a

substantively lawful admission for permanent residence. Id. at

753-54. The BIA’s position is in accord. In re Koloamatangi,

23 I&N Dec. 548, 551 (BIA 2003). In both cases, the petition-

ers sought forms of relief from deportation for which lawful

admission as an LPR was a condition precedent—in the case

of Monet, former INA § 212(c) relief; in the case of Koloama-

tangi, cancellation of removal under 8 U.S.C. § 1229b(a).

Because Monet and Koloamatangi were not actually admissi-

ble at the time of their admission to permanent residence, they

were deemed ineligible to seek relief.4 As Monet explained,

“ ‘[a]dmission is not lawful if it is regular only in form. The

term ‘lawfully’ denotes compliance with substantive legal

requirements, not mere procedural regularity.’ ” 791 F.2d at

753 (quoting In re Longstaff, 716 F.2d 1439, 1441 (5th Cir.

3

The Fourth and Eleventh Circuits have cited Ayala with approval. See

Savoury v. U.S. Attorney Gen., 449 F.3d 1307, 1315 (11th Cir. 2006);

Obioha v. Gonzales, 431 F.3d 400, 409 n.10 (4th Cir. 2005). We also

applied Ayala in an unpublished decision, Singh v. Holder, No. 07-73440,

2009 WL 4884870, at *2 (9th Cir. Nov. 16, 2009).

4

Monet had concealed a prior drug conviction at the time of admission,

Monet, 791 F.2d at 753, and Koloamatangi had obtained LPR status

through a bigamous marriage. Koloamatangi, 23 I&N Dec. at 549.

SUM v. HOLDER 6075

1983)); accord Koloamatangi, 23 I&N Dec. at 551.5 Signifi-

cantly, these cases focus on the word “lawfully” in the context

of admission.

[6] However, the clause in § 212(h) controlling the out-

come here is not “lawfully admitted for permanent residence,”

but rather the preceding phrase, “previously been admitted to

the United States.” This phrase in turn incorporates the defini-

tion of “admission” contained in § 1101(a)(13)(A). Although

Monet and Koloamatangi define what constitutes a lawful

admission for permanent residence under § 1101(a)(20), they

do not tell us what “admission,” or “lawful entry,” means

under § 1101(a)(13)(A) and thus what it means to be “previ-

ously . . . admitted . . . as an alien lawfully admitted for per-

manent residence” under § 212(h).

[7] When § 1101(a)(13)(A) is considered in the context of

§ 212(h), it becomes clear that Congress intended to define

admission in procedural, rather than substantive, terms. By

reading the entire phrase in § 212(h) to refer to substantively

lawful admission for permanent residence, Sum’s proposed

construction renders the first clause superfluous. If Congress

intended § 212(h) to bar only “alien[s] lawfully admitted for

permanent residence,” there would be no need to describe

those non-citizens as also “previously . . . admitted to the

United States.” See Onwuamaegbu, 470 F.3d at 409; Marti-

nez, 519 F.3d at 546; see generally Romero-Ruiz v. Mukasey,

538 F.3d 1057, 1062 (9th Cir. 2008) (noting that “legislative

enactments should not be construed to render their provisions

mere surplusage” (internal quotation marks omitted)).

5

Other courts of appeals have applied the same analysis to determine

eligibility for various forms of relief from removal. See, e.g., Walker v.

Holder, 589 F.3d 12, 19-21 (1st Cir. 2009) (derivative citizenship); Mejia-

Orellana v. Gonzales, 502 F.3d 13, 15-17 (1st Cir. 2007) (cancellation of

removal); De La Rosa v. DHS, 489 F.3d 551, 554-55 (2d Cir. 2007) (per

curiam) (former INA § 212(c) relief); Savoury, 449 F.3d at 1313-17

(same); Arellano-Garcia v. Gonzales, 429 F.3d 1183, 1186-87 (8th Cir.

2005) (same).

6076 SUM v. HOLDER

In addition, adopting a substantive reading of the relevant

phrase runs contrary to the purpose of § 212(h). “By using the

term ‘previously admitted,’ rather than (for example) ‘previ-

ously and lawfully admitted,’ Congress demonstrated that it

specifically intended to penalize those immigrants who sought

and gained LPR status only to abuse its benefits.” Onwua-

maegbu, 470 F.3d at 409; accord Taniguchi, 303 F.3d at 958.

There is no reason why Congress would give a pass to non-

citizens who had fraudulently obtained LPR status while bar-

ring from relief non-citizens who had legitimately obtained

LPR status. See Andreiu v. Ashcroft, 253 F.3d 477, 482 (9th

Cir. 2001) (en banc) (noting that “when possible, we interpret

statutes so as to preclude absurd results”).

Although the BIA has not dealt squarely with the meaning

of “admission” through interpretation of § 1101(a)(13)(A), it

has construed “previously been admitted” in § 212(h) to refer

to a procedurally regular, rather than substantively lawful,

“admission.” See Ayala, 22 I&N Dec. at 401. Like Sum,

Ayala was convicted of an aggravated felony after his admis-

sion as an LPR and sought a § 212(h) waiver in conjunction

with an application for adjustment. Ayala argued that because

he concealed ongoing criminal activity at the time of his

admission for permanent residence, he was never lawfully

admitted, and therefore was eligible for a § 212(h) waiver. Id.

at 399-400.

The BIA rejected Ayala’s claim, explaining:

While the language of section 212(h) distinguishes

those who have been previously admitted for perma-

nent residence from those who have not, the statute

does not, either expressly or by implication, distin-

guish between those whose admission was lawful

and those who were previously admitted for lawful

permanent residence but are subsequently deter-

mined to have been admitted in violation of the law.

SUM v. HOLDER 6077

To read such a distinction into the statute would be

arbitrary and capricious.

Id. at 401 (citation omitted). Ayala’s criminal activity at the

time of admission did not alter “the historical fact that, when

he entered, it was in the status of a lawful permanent resi-

dent.” Id. at 402. The same reasoning applies to Sum.

Stepping back from § 212(h), we find further support for

the procedural construction of “admission” in

§ 1101(a)(13)(A), and thus in § 212(h), in the INA as a whole.

See United States v. Lewis, 67 F.3d 225, 228-29 (9th Cir.

1995) (explaining that “[p]articular phrases must be construed

in light of the overall purpose and structure of the whole stat-

utory scheme”). The overall statutory context is especially rel-

evant here as § 1101(a)(13)(A) is intended to define

“admission” across the INA. See 8 U.S.C. § 1101(a) (defining

terms “[a]s used in this chapter”).

[8] The grounds of deportability set forth at 8 U.S.C.

§ 1227 confirm that Congress meant to define “admission” in

terms of procedural, rather than substantive, lawfulness.

When Congress amended § 1101(a)(13)(A) as part of the

1996 immigration reform, it also amended the INA to require

that a non-citizen be “in and admitted to the United States” in

order to be deportable. Id. at § 1227(a) (emphasis added).

However, Congress left unchanged § 1227(a)(1)(A), which

renders deportable non-citizens who were “admitted” to the

United States, but were in fact inadmissible at the time of

their entry. Id. Reading § 1227(a)(1)(A) with the introductory

text at § 1227(a), it becomes clear that Congress understood

a non-citizen who effected a procedurally lawful entry, but

was substantively ineligible for admission, to have been “ad-

mitted” within the meaning of the statute. The Second Circuit

adopted this construction of § 1101(a)(13)(A) in Emokah v.

Mukasey, 523 F.3d 110 (2d Cir. 2008). At issue was whether

Emokah was admissible under § 1182(a)(6)(A)(ii) as a bat-

tered non-citizen spouse who was present in the United States

6078 SUM v. HOLDER

“without admission or parole” when she had previously

entered the United States on a visa obtained through fraud or

misrepresentation. Id. at 118. Construing § 1101(a)(13)(A),

the court concluded that Emokah had in fact been “admitted”

when she entered on her fraudulent visa because she had

entered after inspection and authorization by an immigration

officer. Id. As the court explained, “an alien who enters the

United States after inspection and authorization has been

‘admitted’ even if he was, ‘at the time of entry . . . within one

or more of the classes of aliens inadmissible by the law.’ ” Id.

(quoting 8 U.S.C. §§ 1227(a)-(a)(1)). “The manner in which

[Emokah] procured her admission rendered her inadmissible

at the time of entry . . . but does not change the fact that she

was, indeed, admitted.” Id.; accord Borrego v. Mukasey, 539

F.3d 689, 693 (7th Cir. 2008) (holding that a non-citizen who

entered on a B-2 visa despite a prior removal, and was there-

fore inadmissible at entry, had nonetheless been “admitted” to

the United States).

Other provisions of the INA provide similar interpretative

support. Section 1227(a)(1)(H) affords a limited waiver to

non-citizens who are “inadmissible at the time of admission”

based on fraud or misrepresentation, expressly contemplating

that non-citizens may procure “admission” through fraudulent

means. See also In re Guang Li Fu, 23 I&N Dec. 985, 988

(BIA 2006) (construing the waiver). Section 1227(a)(1)(G)

renders deportable a non-citizen who procures “admission” as

an immigrant through marriage fraud. These provisions

underscore that “admission” in § 1101(a)(13)(A) includes

non-citizens, like Sum, who entered the United States upon

inspection and authorization, even though they were inadmis-

sible at the time of entry.

In contrast, application of the substantive construction of

“admission” would raise several problems that weigh in favor

of rejecting that approach. For example, if “admitted” referred

to substantively lawful admission, non-citizens who had com-

mitted fraud to gain admission to the United States or who

SUM v. HOLDER 6079

were otherwise inadmissible would not be subject to any of

the grounds of deportability. Congress surely could not have

intended this result. See Andreiu, 253 F.3d at 482.6 Likewise,

if § 1101(a)(13)(A) is read to define admission as a substan-

tively “lawful entry,” the terms “lawful” or “lawfully”

become superfluous in the many provisions where they appear

before the words “admission” or “admitted.” See, e.g., 8

U.S.C. § 1184(n)(2)(A) (referring to a “nonimmigrant alien

. . . who has been lawfully admitted into the United States”);

8 U.S.C. § 1255(b) (referring to a “[r]ecord of lawful admis-

sion”); 8 U.S.C. § 1255a(a) (referring to an “alien lawfully

admitted for temporary residence”); 8 U.S.C. § 1258 (refer-

ring to an “alien lawfully admitted to the United States as a

nonimmigrant”); see also Romero-Ruiz, 538 F.3d at 1062

(noting principle of avoiding surplusage in statutory construc-

tion). There is no reason to graft such an awkward and incon-

sistent construction on the INA: the statutory scheme is

complex enough without superimposing an interpretation that

is not grounded in the statute as a whole.

C. EVOLUTION OF THE STATUTE

The evolution of the statute provides a useful chronology

and backdrop to the current statute. We need not resort to leg-

islative history because the statute is not ambiguous. The cur-

rent definition of “admission” is an artifact of the 1996

immigration reform. Prior to 1996, the INA primarily distin-

guished individuals on the basis of “entry” and not “admis-

sion.” See § 1101(a)(13) (1994) (defining “entry” as “any

coming of an alien into the United States, from a foreign port

or place or from an outlying possession, whether voluntarily

or otherwise”). “Entry” dictated what type of enforcement

6

Indeed, Sum’s case illustrates how the substantive definition of admis-

sion proves too much. If non-citizens were “admitted” only when entering

the United States in substantive compliance with the immigration laws,

Sum’s initial fraud would not only make him eligible for § 212(h) relief;

rather, he would not be deportable as an aggravated felon in the first place.

6080 SUM v. HOLDER

proceeding applied to determine whether a non-citizen could

be removed or barred from the country. Non-citizens who had

effected an “entry” into the United States were subject to

deportation proceedings, while those who had not made an

“entry” were subject to exclusion proceedings. Charles Gor-

don, Stanley Mailman & Stephen Yale-Loehr, 1-1 Immigra-

tion Law and Procedure § 1.03(2)(b) (2010).

This so-called “entry doctrine” resulted in an anomaly.

Under this regime, non-citizens who had entered without

inspection could take advantage of the greater procedural and

substantive rights afforded in deportation proceedings, while

non-citizens who presented themselves at a port of entry for

inspection were subjected to more summary exclusion pro-

ceedings. IIRIRA addressed this anomaly by substituting “ad-

mission” for “entry” and by replacing deportation and

exclusion proceedings with a general “removal” proceeding.

Under the new regime, “admission” now determines whether

a non-citizen is subject to grounds of deportability or inadmis-

sibility within the context of a removal proceeding. See

IIRIRA, Pub. L. No. 104-208, div. C, § 220, 110 Stat. 3009

(amending 8 U.S.C. § 1101(a)(13); id. div. C, § 240, 110 Stat.

3009 (enacting 8 U.S.C. § 1229a); see also H.R. REP. NO.

104-469, at 225-26 (Conf. Rep.) (1996) (explaining reasons

for the amendment).

In adopting the term “admission,” Congress did not legis-

late in a vacuum. Rather, the BIA had long defined admission

through case law. In Matter of Areguillin, the BIA reaffirmed

decades-old precedent holding that an “ ‘[a]dmission’ occurs

when the inspecting officer communicates to the applicant

that he has determined that the applicant is not inadmissible.”

17 I&N Dec. 308, 310 n.6 (BIA 1980) (citing Matter of V-Q-,

9 I&N Dec. 78 (BIA 1960)). In other words, at the time of the

1996 amendment, the BIA defined “admission” in procedural

terms.7 The text of § 1101(a)(13)(A) expressly incorporates

7

The BIA has continued to apply Areguillin in unpublished decisions

following the 1996 reform. See, e.g., In re Orellana de Barden, A95 672

SUM v. HOLDER 6081

this procedural definition. See id. (referring to “the lawful

entry of the alien into the United States after inspection and

authorization by an immigration officer” (emphasis added)).

This approach is hardly surprising, as Congress was presum-

ably aware of the BIA’s definition of “admission” when it

revised § 1101(a)(13)(A). See Lorillard v. Pons, 434 U.S.

575, 583 (1978) (explaining that “ ‘[w]here words are

employed in a statute which had at the time a well-known

meaning . . . in the law of this country[,] they are presumed

to have been used in that sense unless the context compels to

the contrary’ ” (quoting Standard Oil Co. of N.J. v. United

States, 221 U.S. 1, 59 (1911))); see also Neder v. United

States, 527 U.S. 1, 21 (1999) (noting that where Congress

uses terms with settled meanings, “a court must infer, unless

the statute otherwise dictates, that Congress means to incorpo-

rate the established meaning of these terms” (internal quota-

tion marks omitted)).

[9] Congress’ definition of admission as a “lawful entry”

also confirms its intent to define admission in procedural

terms. At the time of IIRIRA’s passage, the BIA had long

defined “entry” as: “(1) a crossing into the territorial limits of

the United States, i.e. physical presence[,] plus (2) inspection

and admission by an immigration officer[,] or (3) actual and

intentional evasion of inspection at the nearest inspection

point[,] coupled with (4) freedom from restraint.” Matter of

Pierre, 14 I&N Dec. 467, 468 (1973) (citations omitted).8

921, 2007 WL 4699871 (BIA Nov. 13, 2007) (holding that “Areguillin . . .

was not superseded by the 1996 amendments to the Act.”); In re Parra-

Parra, A77 751 684, 2004 WL 2418593 (BIA Oct. 5, 2004); but see In

re Osovskiy, A97 698 552, 2008 WL 2401108 (BIA May 7, 2008) (citing

Orozco before it was vacated to rule that Areguillin was not controlling “in

the current case”).

8

Accord Matter of Jimenez-Lopez, 20 I&N Dec. 738, 740-41 (BIA

1993); Matter of Patel, 20 I&N Dec. 368, 370 (BIA 1991); Matter of

Ching, 19 I&N Dec. 203, 205 (BIA 1984); Matter of Lin, 18 I&N Dec.

219, 220 (BIA 1982).

6082 SUM v. HOLDER

Thus, under the BIA’s case law as it stood in 1996, “admis-

sion” referred to a “lawful” entry—that is, only those entries

involving “inspection and admission by an immigration offi-

cer,” as opposed to those “unlawful” entries involving “actual

and intentional evasion of inspection at the nearest inspection

point.” Id.; see also Areguillin, 17 I&N Dec. at 310 n.6. By

defining “admission” as “lawful entry,” Congress incorpo-

rated this longstanding distinction into the INA. See Lorillard,

434 U.S. at 583. Procedure, and not substance, is determina-

tive of an “admission” into the United States under

§§ 1101(a)(13)(A) and 212(h).

CONCLUSION

[10] The text, structure, and history of the statute confirm

that the terms “admission” and “admitted” as used in

§§ 1101(a)(13)(A) and 212(h) refer to inspection and authori-

zation by an immigration officer at the port of entry. Because

Sum was admitted as an LPR pursuant to such procedures and

later convicted of an aggravated felony, he is barred from

seeking § 212(h) relief. The petition for review is denied.

DENIED

GRABER, Circuit Judge, concurring:

I concur in the majority opinion but write separately to sug-

gest that this situation also lends itself to application of the

traditional notion of equitable estoppel.

In immigration cases, we have applied the principle of

equitable estoppel against the government when the govern-

ment has engaged in affirmative misconduct, such as a delib-

erate lie. Socop-Gonzalez v. INS, 272 F.3d 1176, 1184 (9th

Cir. 2001) (en banc). The party asserting estoppel must estab-

lish these traditional elements: (1) the party to be estopped

SUM v. HOLDER 6083

knows the facts, (2) the party intends that his conduct be acted

on, (3) the other party is ignorant of the facts, and (4) the

other party relies detrimentally on the conduct of the party to

be estopped. Salgado-Diaz v. Ashcroft, 395 F.3d 1158, 1166

(9th Cir. 2005). And the party asserting estoppel must show

that the public interest would not be burdened by estoppel.

Id.; cf. New Hampshire v. Maine, 532 U.S. 742 (2001) (dis-

cussing elements of judicial estoppel).

In my view, these principles should apply to the goose as

well as the gander in the circumstances here. When Sum

sought LPR status, he knew the fact of his previous arrest. He

deliberately lied by denying any previous arrest. He intended

that the government act on his false representation of a clean

record. The government did not know of the previous arrest.

The government relied to its detriment on Sum’s representa-

tion when it granted LPR status. Allowing Sum now to claim

that he never was entitled to LPR status, after he lied to obtain

it, damages respect for the law and damages the public inter-

est. We should not countenance that change of position in the

context of Sum’s present attempt to obtain a favorable exer-

cise of discretion from the government. See Akbarin v. INS,

669 F.2d 839, 844 (1st Cir. 1982) (noting that, in considering

whether to estop the government, all equities must be weighed

carefully and the petitioner’s unclean hands, such as conceal-

ment of facts from the INS, counsel against estopping the

government).