FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUANA NEGRETE-RAMIREZ, No. 10-71322
Petitioner,
Agency No.
v. A079-355-559
ERIC H. HOLDER, JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
December 9, 2011—San Francisco, California
Filed January 21, 2014
Before: Diarmuid F. O’Scannlain, Robert E. Cowen,*
and Marsha S. Berzon, Circuit Judges.
Opinion by Judge Cowen;
Concurrence by Judge Berzon
*
The Honorable Robert E. Cowen, Senior United States Circuit Judge
for the Third Circuit, sitting by designation.
2 NEGRETE-RAMIREZ V. HOLDER
SUMMARY**
Immigration
The panel granted Juana Negrete-Ramirez’s petition for
review of the Board of Immigration Appeals’ decision finding
that the statutory language of the Immigration and Nationality
Act excludes her from eligibility to apply for a waiver of
inadmissibility under Immigration and Nationality Act
§ 212(h).
The panel held that under the plain language of INA
§ 212(h) only non-citizens who entered the United States as
lawful permanent residents are barred from eligibility to
apply for waiver. The panel held that Negrete-Ramirez is not
barred from applying for a waiver, because her post-entry
adjustment of status to a lawful permanent resident after her
admission to the U.S. does not constitute an admission in the
context of INA § 212(h).
Concurring, Judge Berzon wrote separately to comment
on the BIA’s precedential opinions affecting the
interpretation of INA § 212(h). Judge Berzon wrote that the
overall premise of the BIA’s opinions is that the plain
language approach to the incorporation of the definition of
“admission” and “admitted” in INA § 101(a)(13) cannot
suffice, both in general and with regard to the INA § 212(h)
waiver, but that she is persuaded rather by the majority
opinion’s approach applying a plain words interpretation to
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
NEGRETE-RAMIREZ V. HOLDER 3
the statutory definition of “admission” and “admitted” in the
INA when it is sensible to do so.
COUNSEL
Michael K. Mehr (argued) and Rachael E. Keast, Santa Cruz,
California, for Petitioner.
Laura Halliday Hickein (argued) and Nancy Canter,
Washington, D.C., for Respondent.
OPINION
COWEN, Circuit Judge:
Juana Negrete-Ramirez petitions for review of the Board
of Immigration Appeal’s (“BIA”) order dismissing her
appeal. Negrete-Ramirez contends that the BIA erred in
determining that the statutory language of the Immigration
and Nationality Act (“INA”) excludes her from eligibility to
apply for an inadmissibility waiver under Section 212(h) of
the INA, 8 U.S.C. § 1182(h) (“§ 212(h) waiver”). In reaching
its conclusion, the BIA misinterpreted the plain language of
INA § 212(h) and Ninth Circuit precedent. A de novo review
of the statutory text, as well as the precedent of this Court and
our sister Circuits, leads to the conclusion that Negrete-
Ramirez is eligible to be considered for the § 212(h) waiver.
See Papazoglou v. Holder, 725 F.3d 790, 792–94 (7th Cir.
2013); Leiba v. Holder, 699 F.3d 346, 348–56 (4th Cir.
2012); Hanif v. Attorney General, 694 F.3d 479, 483–87 (3d
Cir. 2012); Martinez v. Attorney General, 693 F.3d 408,
411–16 (3d Cir. 2012); Bracamontes v. Holder, 675 F.3d 380,
4 NEGRETE-RAMIREZ V. HOLDER
384–89 (4th Cir. 2012); Lanier v. Holder, 631 F.3d 1363,
1365–67 (11th Cir. 2011); Martinez v. Mukasey, 519 F.3d
532, 541–46 (5th Cir. 2008). We grant the petition for review
and remand to the BIA with instructions to remand to the
Immigration Judge (“IJ”) so that Negrete-Ramirez may seek
a § 212(h) waiver.
I.
Negrete-Ramirez was admitted into the United States, as
defined by 8 § U.S.C. 1101(a)(13), in April 1996 on a B2
visitor visa. She subsequently adjusted her status to that of a
lawful permanent resident (“LPR”). Four years later,
Negrete-Ramirez pleaded nolo contendre to two counts of
committing a lewd act upon a child in violation of Section
288(a) of the California Penal Code. In January 2009, she was
returning from abroad and was paroled1 into the United States
by the Bureau of Border and Customs Protection. Removal
proceedings were initiated against her after she was served
with a Notice to Appear. In the Notice to Appear, the
Department of Homeland Security charged her with being
inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(I), as an alien
convicted of a crime involving moral turpitude.
At the removal hearing, the IJ found Negrete-Ramirez
removable as charged. When she informed the IJ that she
would apply for relief in the form of cancellation of removal
under 8 U.S.C. § 1229b, the IJ held that her conviction was
for an aggravated felony, and she was ineligible for
cancellation of removal. Negrete-Ramirez appealed this
1
“An alien who is paroled . . . shall not be considered to have been
admitted.” 8 U.S.C. § 1101(a)(13)(B) (defining “admission” and
“admitted”).
NEGRETE-RAMIREZ V. HOLDER 5
decision to the BIA, but the record could not be located and
the case was remanded to develop a new record.
On remand, Negrete-Ramirez made a motion to the IJ to
calendar proceedings to allow her to apply for a § 212(h)
waiver. A § 212(h) waiver is granted at the discretion of the
Attorney General to aliens whose inadmissibility is based on
certain criteria. The IJ calendared a hearing for her § 212(h)
waiver application. At the hearing, the IJ determined that she
was not eligible to apply for the § 212(h) waiver because of
her aggravated felony conviction following her adjustment of
status to an LPR. Matter of Juana Negrete Ramirez, A79 355
559 (Oct. 22, 2009). Negrete-Ramirez appealed the decision
to the BIA. The BIA found her ineligible to apply for the
§ 212(h) waiver due to her aggravated felony because she was
“‘admitted’ to the United States when she adjusted her status
in 2002” and affirmed the IJ’s order. Matter of Juana
Negrete-Ramirez, A079 355 559 (BIA Apr. 21, 2010).
II.
The issue before us is whether a noncitizen, who is
admitted to the United States on a visitor visa and later
adjusts her status to a lawfully admitted permanent resident
without leaving the United States, qualifies under 8 U.S.C.
§ 1182(h) as “an alien who has previously been admitted to
the United States as an alien lawfully admitted for permanent
residence,” and, therefore, is ineligible to apply for a § 212(h)
waiver.
We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to
review the legal question of whether Negrete-Ramirez is
statutorily eligible to apply for a § 212(h) waiver. De novo
review of a statutory construction begins with the text of the
6 NEGRETE-RAMIREZ V. HOLDER
statute. See, e.g., Hing Sum v. Holder, 602 F.3d 1092, 1095
(9th Cir. 2010). “In the context of an unambiguous statute,
we need not contemplate deferring to the agency’s
interpretation.” Barnhart v. Sigmon Coal Co., 534 U.S. 438,
462 (2002) (citing Chevron, U.S.A., Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837, 842–43 (1984)).
III.
If “Congress has directly spoken to the precise question
at issue,” the Court “must give effect to the unambiguously
expressed intent of Congress.” Chevron, 467 U.S. at 842–43;
Sum, 602 F.3d at 1095. Review of the relevant statutory text
and “employ[ment of] traditional tools of statutory
construction,” Chevron, 467 U.S. at 843 n.9, leads to the
conclusion that the text is unambiguous and that the bar to
seeking a § 212(h) waiver of inadmissibility does not apply
to persons who adjusted to lawful permanent resident status
after having entered into the United States by inspection. To
date, our sister Circuits have — without exception — “held
that § 212(h) precludes a waiver only for those persons who,
at the time they lawfully entered into the United States, had
attained the status of lawful permanent residents.”
Papazoglou, 725 F.3d at 793 (citing Hanif, 694 F.3d at 487;
Bracamontes, 675 F.3d at 386–87; Lanier, 631 F.3d at
1366–67; Martinez, 519 F.3d at 546). We ultimately agree
with the Third, Fourth, Fifth, Seventh, and Eleventh Circuits.
The relevant text governing the § 212(h) waiver is as
follows:
[n]o waiver shall be granted under this
subsection in the case of an alien who has
previously been admitted to the United States
NEGRETE-RAMIREZ V. HOLDER 7
as an alien lawfully admitted for permanent
residence if [] since the date of such
admission the alien has been convicted of an
aggravated felony . . . .
INA § 212(h), 8 U.S.C. § 1182(h) (emphasis added). As the
Ninth Circuit observed in its analysis of this exact text, it “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 residence.’” Sum,
602 F.3d at 1095 (quoting 8 U.S.C. § 1182(h)).2 The
definitions section of the INA sets forth separate definitions
for “admitted,” as used in the first phrase, 8 U.S.C.
§ 1101(a)(13), and “lawfully admitted for permanent
residence,” id. § 1101(a)(20), as used in the second phrase.
An analysis of the statutory language requires an assessment
of the effect of these terms on the meaning of the provision as
a whole. Resolving the issue before the Court turns primarily
on whether “admitted” as understood in § 212(h) includes
Negrete-Ramirez’s post-entry adjustment of status.
1. 8 U.S.C. § 1101(a)(13)(A): “Admitted” and
“Admission”
The statute defines “admitted” and “admission” as “the
lawful entry of the alien into the United States after
2
In Sum, the issue before the Ninth Circuit was whether the petitioner,
who was admitted into the United States at a point of entry by
misrepresenting his status as a lawful permanent resident, was eligible to
apply for a § 212(h) waiver. The Court held that the definition of
“admitted” under the INA referred to a procedurally lawful entry rather
than a substantively lawful entry. As a result, petitioner’s admission at the
point of entry into the United States was as an LPR; therefore, he was
ineligible to apply for a § 212(h) waiver. Sum, 602 F.3d at 1094–1101.
8 NEGRETE-RAMIREZ V. HOLDER
inspection and authorization by an immigration officer.”
8 U.S.C. § 1101(a)(13)(A) (emphasis added). Applying the
“ordinary, contemporary, common meaning” of this
definition’s terms reveals that it is limited and does not
encompass a post-entry adjustment of status. Pioneer Inv.
Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380,
388 (1993); see also Papazoglou, 725 F.3d at 792–93; Leiba,
699 F.3d at 350–51; Hanif, 694 F.3d at 484–85; Bracamontes,
675 F.3d at 385–86; Lanier, 631 F.3d at 1366–67; Martinez,
519 F.3d at 543–44. The definition refers expressly to entry
into the United States, denoting by its plain terms passage
into the country from abroad at a port of entry.
The government urges the Court to adopt a definition of
“admitted” that includes post-entry adjustment of status to an
LPR. In support of its argument, the government cites three
Ninth Circuit cases that interpret “admission” and “admitted”
as used in specific sections of the INA to include adjustment
of status. None of the cases involve a departure from the
statute’s plain language definition of “admitted” as used in
§ 212(h). And none of the cases involve statutory language
that is divisible into two distinct phrases, each with its own
term of art, like that in § 212(h).
The first case, Cuevas-Gaspar v. Gonzales, 430 F.3d 1013
(9th Cir. 2005), cannot be relied on as binding precedent for
the principle that adjustment of status to an LPR is an
“admission” because the issue was neither before the Court
nor addressed by it. In Cuevas-Gaspar, the Court held that a
parent’s status may be imputed to their minor unemancipated
child for purposes of cancellation of removal under 8 U.S.C.
§ 1229b(a). Id. at 1029. The Court’s analysis was premised
on the assumption that the petitioner would satisfy the
cancellation of removal requirement of 7 years of continuous
NEGRETE-RAMIREZ V. HOLDER 9
residence “after having been admitted in any status” if his
mother’s adjustment of status to LPR was imputed to him.
Id. at 1021–29. The threshold issue of whether a post-entry
adjustment of status to LPR is an “admi[ssion] in any status”
was not mentioned by the Court. Accordingly, although
Cuevas-Gaspar might imply a broader definition of
“admitted” than that in 8 U.S.C. § 1101(a)(13), the Court did
not hold that adjustment of status is an “admission” in any
context, let alone the one presently before the Court. In any
case, the Supreme Court subsequently overruled Cuevas-
Gaspar. See Holder v. Martinez Gutierrez, 132 S. Ct. 2011
(2012).
The other two cases cited by the government fare only
slightly better. In Ocampo-Duran v. Ashcroft, 254 F.3d 1133,
1134–35 (9th Cir. 2001), the petitioner had entered the United
States, but was not admitted as defined by 8 U.S.C.
§ 1101(a)(13), like Negrete-Ramirez was, before adjusting his
status to an LPR. The petitioner argued that he was not
removable under 8 U.S.C. § 1227(a)(2)(A)(iii), which states
“[a]ny alien who is convicted of an aggravated felony at any
time after admission is deportable,” because he was never
“admitted” according to 8 U.S.C. § 1101(a)(13). Id. at 1134.
Notably, as opposed to rejecting petitioner’s narrow
interpretation of 8 U.S.C. § 1101(a)(13), the Court
“reject[ed] Ocampo-Duran’s overly-narrow interpretation of
[§ 1227(a)(2)(A)(iii)]” because it would create a loophole in
removability for those who entered without inspection. Id. at
1135. The Ninth Circuit later expounded on this reasoning in
Shivaraman v. Ashcroft, 360 F.3d 1142, 1148 (9th Cir. 2004),
stating that “[§ 1101(a)(13)(A)] was plainly inapplicable” to
Ocampo-Duran’s case and that the Court “embraced an
alternative construction of the term in order to . . . avoid the
absurd result [it] would be forced to give the provision in the
10 NEGRETE-RAMIREZ V. HOLDER
case of aliens who enter the country unlawfully.” Id. In
Shivaraman, the Ninth Circuit distinguished Ocampo-Duran
and reversed the BIA’s determination that the date of
admission was the date on which the petitioner adjusted his
status to lawful permanent residence because the petitioner
had been admitted as defined by 8 U.S.C. § 1101(a)(13)
before adjusting his status. Id. at 1148–49. The Shivaraman
Court rejected the notion that an alien can have more than one
date of admission for purposes of the five year removal
provision in 8 U.S.C. § 1227(a)(2)(A)(i). Id. at 1149.
Similar to Ocampo-Duran, in Garcia-Quintero v.
Gonzales, 455 F.3d 1006, 1018–19 (9th Cir. 2006), the Court
held that the petitioner who entered the United States
illegally, was accepted into the Family Unity Program, and
then adjusted his status to LPR, was “admitted in any status”
for purposes of cancellation of removal under 8 U.S.C.
§ 1229b(a) when he was accepted into the Family Unity
Program. Like the petitioner in Ocampo-Duran, Garcia-
Quintero was never admitted as defined by 8 U.S.C.
§ 1101(a)(13). Id.
Although the cases cited by the government “embrace[]
an alternative construction of the term [admitted],” they are
consistent with our prior “recogni[tion] [of] section
101(a)(13)(A) as the primary, controlling definition of the
statutory term.” Shivaraman, 360 F.3d at 1148. When
viewed together, the only principle gleaned from these cases
is that in the absence of an admission as defined by 8 U.S.C.
§ 1101(a)(13), the date on which a alien adjusts from
unlawful to lawful presence in the United States qualifies as
the date of admission for purposes of removability for
committing an aggravated felony or for cancellation of
removal. In the sections of the INA at issue in these cases, an
NEGRETE-RAMIREZ V. HOLDER 11
individual’s admission is simply a temporal reference point
for the statute’s substantive requirements: the commission of
a crime, or 7 years of continuous presence, since admission.
The terms “admission” and “admitted” in these sections are
either unqualified or “in any status”; they do not appear in the
same phrase with a separate reference to having adjusted
status.
Because Negrete-Ramirez was admitted into the United
States as defined by 8 U.S.C. § 1101(a)(13)(A), this specific
statutory definition is not “plainly inapplicable” to her case.
It was this fact in Shivaraman, 360 F.3d at 1148, that
distinguished it from Ocampo-Duran, 254 F.3d at 1134–35,
and led to a different outcome. “When a statute includes an
explicit definition, we must follow that definition,” Stenberg
v. Carhart, 530 U.S. 914, 942 (2000) (citations omitted),
unless doing so is not possible in a particular context. In this
case, the explicit statutory definition of “admitted” clearly
applies. And the ultimate result of our holdings in Garcia-
Quintero, 455 F.3d at 1018–19, and Cuevas-Gaspar, 430 F.3d
at 1029, was to expand rather than contract the pool of
individuals eligible for relief from removal provided by the
INA. Our holding in Negrete-Ramirez’s case will have the
same result.
We note that the government also relies on BIA decisions.
Because there is no ambiguity in the statutory text, we need
not examine these agency decisions. See, e.g., Barnhart,
534 U.S. at 462.
12 NEGRETE-RAMIREZ V. HOLDER
2. 8 U.S.C. § 1101(a)(20): “Lawfully Admitted for
Permanent Residence”
The second distinct phrase in the text of § 212(h) contains
the statutorily defined term “lawfully admitted for permanent
residence.” The term is defined as “the status of having been
lawfully accorded the privilege of residing permanently in the
United States as an immigrant in accordance with the
immigration laws, such status not having changed.” 8 U.S.C.
§ 1101(a)(20). This term encompasses all LPRs, regardless
of whether they obtained that status prior to or at the time
they physically entered the United States or by adjusting their
status while already living in the United States, like Negrete-
Ramirez.
3. Statutory Language of § 212(h) as a Whole
When reading the statutory language of § 212(h) —
“previously been admitted . . . as an alien lawfully admitted
for permanent residence” — against the definitions section
of the INA, the two terms qualify each other. It is
unambiguous that Congress defined the class of those who
are barred from seeking a § 212(h) waiver as LPRs who
obtained their status prior to or at the time they physically
entered into the United States. Papazoglou, 725 F.3d at
792–93; Leiba, 699 F.3d at 350–51; Hanif, 694 F.3d at
484–85; Bracamontes, 675 F.3d at 385–86; Lanier, 631 F.3d
at 1366–67; Martinez, 519 F.3d at 546. If the term
“admitted” in the phrase “previously been admitted” included
post-entry adjustment of status to an LPR, as proposed by the
government, the first section of the statutory language, “an
alien who has previously been admitted to the United States
as,” would be superfluous because the definition of “lawfully
admitted for permanent residence” encompasses adjustment
NEGRETE-RAMIREZ V. HOLDER 13
of status. As such, the construction would run afoul of a
basic principle of statutory interpretation that “legislative
enactments should not be construed to render their provisions
mere surplusage.” Sum, 602 F.3d at 1097 (citation omitted).
Had Congress intended the bar on eligibility to apply to all
LPRs, it would have simply omitted this phrase.
Furthermore, construing the statute to bar from eligibility
only LPRs who entered into the United States in such status
is bolstered by the “‘longstanding principle of construing any
lingering ambiguities in deportation statutes in favor of the
alien.’” Cuevas-Gaspar, 430 F.3d at 1029 (quoting I.N.S. v.
Cardoza-Fonesca, 480 U.S. 421, 449 (1987)).
Our sister Circuits have opined as to the rational
explanations for why Congress might have chosen to limit the
bar on eligibility for certain LPRs and not others. See, e.g.,
Lanier, 631 F.3d at 1367 n.4; Martinez, 519 F.3d at 545.
Regardless of Congress’s reasoning, such a distinction,
arising from a plain language reading of the statute, does not
lead to the type of result that permits invocation of the
absurdity doctrine. The Supreme Court “rarely invokes [this
ambiguity test] to override unambiguous legislation.”
Barnhart, 534 U.S. at 459. “‘When the words of a statute are
unambiguous, then, this first canon is also the last: “judicial
inquiry is complete.”’” Id. at 462 (quoting Conn. Nat’l Bank
v. Germain, 503 U.S. 249, 253–54 (1992)). Accordingly,
“[w]e will not alter the text in order to satisfy the policy
preferences of the [agency].” Id.
IV.
Section 212(h) of the INA expressly incorporates the
terms of art “admitted” and “lawfully admitted for permanent
residence” as defined by 8 U.S.C. § 1101(a) (13) and (20).
14 NEGRETE-RAMIREZ V. HOLDER
Accordingly, the plain language of § 212(h) unambiguously
demonstrates that Negrete-Ramirez’s post-entry adjustment
of status to an LPR after her admission to the United States as
a visitor does not constitute an admission in the context of
§ 212(h). Only noncitizens who entered into the United
States as LPRs are barred from eligibility to apply for the
§ 212(h) waiver. Negrete-Ramirez is not barred from
applying for a § 212(h) waiver.
We grant the petition for review and remand this matter
to the BIA with instructions to remand to the IJ so that
Negrete-Ramirez may apply for relief under § 212(h).
PETITION FOR REVIEW GRANTED. REMANDED
FOR FURTHER PROCEEDINGS CONSISTENT WITH
THIS OPINION.
BERZON, Circuit Judge, concurring:
Although I concur in the majority opinion, some comment
on the Board of Immigration Appeals’ (“BIA”) precedential
opinions affecting the interpretation of section 212(h) of
Immigration and Nationalities Act (“INA”) is in order. See
In re Rodriguez, 25 I. & N. Dec. 784 (BIA 2012); In re
Alyazji, 25 I. & N. Dec. 397 (BIA 2011); In re Koljenovic,
25 I & N Dec. 219 (BIA 2010); In re Rosas-Ramirez, 22 I. &
N. Dec. 616 (BIA 1999).
The overall premise of those opinions is that the plain
language approach to the incorporation of the definition of
“admission” and “admitted” in INA section 101(a)(13) cannot
suffice, both in general and with regard to the section 212(h)
NEGRETE-RAMIREZ V. HOLDER 15
waiver. The BIA stresses that the INA elsewhere provides
for the assimilation of adjustment of status to admission,1 and
disregarding that assimilation leads to results that could not
have been intended. Alayzji, in particular, maintains that a
uniform interpretation of the term “admission” throughout the
INA as including adjustment of status is essential to avoid
inconsistent and arbitrary results. See Alyazji, 25 I. & N. Dec.
at 402–04.
This point has considerable force, and I was initially
inclined to defer to it, as an acceptable interpretation of the
INA as a whole and therefore of the section 212(h) waiver.
On reflection, however — and given the uniform holdings to
the contrary of every federal Court of Appeals that has
addressed the question — I am persuaded by the majority’s
overall approach, which I take to be essentially this:
We must apply a plain words interpretation to the
statutory definition of “admission” and “admitted” in the INA
when we can sensibly do so. In this case, the juxtaposition of
the statutorily defined term, “admitted,” INA § 101(a)(13),
with a second such term, “lawfully admitted for permanent
residence,” id. § 101(a)(20), particularly requires a plain
words approach to the first term; otherwise, the term
“admitted” would be redundant of the second phrase. In
1
See, e.g., INA § 101(a)(20) (designating those who have adjusted status
as having been “lawfully admitted for permanent residence”) (emphasis
added); id. §§ 245(a), (i) (authorizing the Attorney General to adjust the
status of certain aliens “to that of an alien lawfully admitted for permanent
residence” as long as they are “admissible” or have received a waiver of
inadmissibility) (emphasis added); id. § 245(b) (requiring the Attorney
General, having adjusted an alien’s status to that of a permanent resident,
to “record the alien’s lawful admission for permanent residence as of the
date” of adjustment) (emphasis added); id. § 240A(b)(3) (same).
16 NEGRETE-RAMIREZ V. HOLDER
some instances, however, such as where there has been no
admission of the sort contemplated by the statute, yet the
context requires some trigger date by which to measure a later
event, or where the result of treating an adjustment of status
as if there had been no admission would be absurd,
adjustment of status must be treated as admission. See Maj.
Op. at pp. 10–11.
This nuanced approach now seems to me more faithful to
the appropriate division of responsibility between Congress
and administrative agencies, and between such agencies and
the courts, embodied in Chevron, U.S.A., Inc. v. NRDC, Inc.,
467 U.S. 837 (1984), and its progeny, than the BIA’s
insistence on abandoning the plain language throughout the
INA with regard to the terms “admitted” and “admission,” so
as to avoid a context-specific approach in those circumstances
in which the statutory definition simply will not work. Put
another way, although the BIA’s insistence on uniformity is
perhaps a more orderly answer — in the sense of assuring
consistency and limiting interpretive discretion — allowing
the agency and courts to substitute for a definition that is in
the statute one that is not, even when the statutory definition
is perfectly coherent given the context and other features of
the text, goes beyond the agency’s authority and, derivatively,
ours. As the opinion does not insist on a literal interpretation
of “admission” where these conditions are not met, and where
the statutory assimilation of adjustment to admission
therefore works better, I accept its reasoning.
It is also worth pointing out that some of the anomalies
that the BIA’s cases suggest arise unless adjustment of status
is considered admission for all INA purposes do not, in fact,
exist.
NEGRETE-RAMIREZ V. HOLDER 17
For example, Alyazji suggests that if an adjustment of
status does not constitute an admission, many immigrants
who currently seek waivers under section 212(h) would no
longer be eligible to do so. See Alyazji, 25 I. & N. Dec. at
403. Alyazji points out that section 212(h)(1)(B) “permit[s]
the Attorney General to waive the application of various
grounds of inadmissibility if a ‘denial of admission’ . . .
would result in extreme hardship to the alien’s close relatives
in the United States.” Id. The BIA contends that as a result,
if adjustment of status is not an “admission”
for previously admitted aliens, . . . then such
aliens would seem to be ineligible for waivers
in the adjustment context, since any
prospective hardship befalling their family
members would no longer be attributable to a
denial or refusal of “admission.” Meanwhile,
aliens who seek adjustment after having
entered the United States unlawfully would
remain eligible for waivers because, for them,
adjustment of status would still be an
admission.
Id. (emphasis in original).
The BIA’s concern is unjustified. Section 212(h) applies
only to aliens who are “inadmissible” or “ineligible to receive
visas” due to criminal activity. See INA § 212(a)(2). To be
eligible for adjustment of status, an alien must ordinarily be
admissible, and must receive a visa. See, e.g., id. § 245(a).
And any ambiguity that may be created by reference to “the
alien’s denial of admission[,]” id. § 212(h)(1)(B), in the
waiver section is cleared up (1) by the reference to “an alien
lawfully admitted for permanent residence” in the same
18 NEGRETE-RAMIREZ V. HOLDER
sentence as eligible for a waiver — defined in section
101(a)(20) as a status separate from actual admission at the
border; and (2) the explicit permission in the next sentence to
the Attorney General to consent to “admission to the United
States, or adjustment of status[,]” id. § 212(h)(2) (emphasis
added). Indeed, the inclusion of both terms, separately,
within section 212(h)(2) belies the notion that the first,
admission, always includes the second, adjustment, and
indicates, instead, that it at least sometimes does not.
Koljenovic similarly asserts that if adjustment of status is
not treated as an “admission,” an alien who enters without
inspection and later adjusts status “would be in the absurd
position of being a lawful permanent resident without ever
having been ‘admitted’ in that status and thus could be
subject to inadmissibility under section 212(a)(6)(A)(i) of the
Act[,]” Koljenovic, 25 I. & N. Dec. at 222, as an “alien
present in the United States without being admitted or
paroled,” INA § 212(a)(6)(A)(i). Thus, “many lawful
permanent residents would be considered inadmissible,
despite their lawful status, based on their presence in the
United States without having been admitted.” Alyazji, 25 I.
& N. Dec. at 399. But individuals whose status has been
adjusted are assigned a constructive date of lawful admission
for permanent residence. See INA § 245(b). And section
237(a)(1)(A) explicitly treats as deportable an alien
inadmissible “at the time of entry or adjustment of status,”
clearing up any ambiguity about whether aliens who have
adjusted status are to be treated as if they were at the border
seeking admission for purposes of the removal statutes. Id.
§ 237(a)(1)(A) (emphasis added). So, once again, where a
literal interpretation of “admission” might lead to absurdities,
the statute mentions “adjustment” specifically, and so signals
that in the particular context, adjustment is to be assimilated
NEGRETE-RAMIREZ V. HOLDER 19
to adjustment. See also Ocampo-Duran v. Ashcroft, 254 F.3d
1133, 1134–35 (9th Cir. 2001) (rejecting as an absurdity the
argument that an alien who adjusted status was not removable
as an “alien . . . convicted of an aggravated felony at any time
after admission,” INA § 237(a)(2)(A)(iii), “because he was
never technically ‘admitted’ for purposes of the statute”).
Finally, I disagree with the BIA that, under this Court’s
interpretation, an alien who adjusts status without having
previously been admitted would be ineligible for cancellation
of removal. See Alyazji, 25 I. & N. Dec. at 399 n.2. The
Attorney General may cancel the removal of an alien who,
inter alia, “has resided in the United States continuously for
7 years after having been admitted in any status . . . .” INA
§ 240A(a)(2) (emphasis added). The BIA suggests that if
adjustment of status is not deemed an “admission,” an alien
who entered unlawfully before adjusting status would not
meet the 7-year continuous residence requirement for
cancellation.
Our interpretation does not require this result. This is
precisely the situation identified above: there has been no
admission of the type envisioned by section 101(a)(13)(A),
but the INA requires a trigger date by which to measure the
7 years of continuous residence. In that context, the date of
an adjustment of status may be used as a date of admission.
For these reasons, I find the majority’s approach more
likely to lead to results consistent with Congress’ overall
intent in this complicated and oft-amended statute, and view
the anomalies identified by the BIA as overblown. I therefore
concur.