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).