Abraham Saldivar v. Jefferson Sessions

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.