Saliba v. Attorney General of the United States

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________

No. 15-3769
______________

BASSAM SALIBA,
Appellant
v.

ATTORNEY GENERAL OF THE UNITED STATES
OF AMERICA; DIRECTOR UNITED STATES
CITIZENSHIP AND IMMIGRATION SERVICES;
JOHN E. THOMPSON, Director for District of New Jersey;
RANDI C. BORGEN, Newark Field Office Director;
UNITED STATES ATTORNEY
______________

On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civ. No. 2-14-cv-06174)
Honorable Katherine S. Hayden, District Judge
______________

Submitted under Third Circuit L.A.R. 34.1(a)
June 14, 2016

BEFORE: AMBRO, JORDAN, and GREENBERG,
Circuit Judges
 (Opinion Filed: July 8, 2016)

Danielle M. Fackenthal, Esquire
Julie A. Goldberg
Goldberg & Associates
5586 Broadway, 3rd Floor
Bronx, NY 10463

Attorneys for Appellant

Benjamin C. Mizer, Esquire
Principal Deputy Assistant Attorney General
William C. Peachey
Office of Immigration Litigation Director
Jeffrey S. Robins
Assistant Director
Timothy M. Belsan
Trial Attorney
P.O. Box 868, Ben Franklin Station
Washington, DC 20044

Paul J. Fishman, Esquire
United States Attorney
District of New Jersey
Allan B.K. Urgent
Assistant United States Attorney
Office of the United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102
Attorneys for Appellees

2
 ______________

OPINION
______________

GREENBERG, Circuit Judge.

I. INTRODUCTION

Petitioner-appellant Bassam Saliba (“Saliba”) obtained
Temporary Protected Status (“TPS”) in 1992 in this country by
providing falsified documents with his application indicating
that he was a citizen of Lebanon. Saliba was, in reality, a native
and citizen of Syria, a country whose citizens at that time were
not eligible for TPS. Nine years later, in 2001, Saliba was able
to adjust his status to that of a legal permanent resident (“LPR”).
Even though Saliba’s fraudulent procurement of TPS should
have rendered him statutorily “inadmissible” under 8 U.S.C. §
1182(a)(6)(C)(i) and thus not eligible for LPR status, the former
Immigration and Naturalization Service (“INS”) mistakenly
granted him that status. But when Saliba applied for
naturalization in 2006, the United States Citizenship and
Immigration Services (“USCIS”) discovered that he had
obtained TPS by submitting a fraudulent application and denied
his application for naturalization for that reason. In explaining
the reason for its action the USCIS pointed out that Saliba’s
apparent fraud precluded a finding that he had been “lawfully
admitted” as a permanent resident as required for naturalization
under 8 U.S.C. § 1427(a). Saliba filed a second unsuccessful
naturalization application following which he filed a petition for
review of the denial of his application for naturalization in the
District Court pursuant to 8 U.S.C. § 1421(c).

3
 In the District Court, respondents-appellees, the Attorney
General of the United States and various USCIS officials
(collectively, “the Government”), moved to dismiss Saliba’s
petition pursuant to Federal Rule of Civil Procedure 12(b)(6),
and, in the alternative, moved for summary judgment, on the
ground that Saliba is statutorily ineligible for naturalization.
The Court on September 18, 2015, granted the Government’s
motion to dismiss Saliba’s petition. Thereafter, Saliba timely
filed a notice of appeal to this Court. After our review of the
case, we conclude that Saliba’s fraudulent procurement of TPS
in 1992 made him inadmissible for LPR status, and, because he
had not been “lawfully admitted” for permanent residence, he
cannot be naturalized. Accordingly, we will affirm the District
Court’s September 18, 2015 order dismissing Saliba’s petition
for review.1

II. STATEMENT OF JURISDICTION

The District Court had jurisdiction pursuant to 8 U.S.C. §
1421(c), which provides that an individual whose application for
naturalization is denied may “seek review of such denial before
the United States district court for the district in which such
person resides.” We have jurisdiction pursuant to 28 U.S.C. §
1291, because the District Court’s September 18, 2015 order
constituted a final order.

1
Two panels of this Court are filing opinions in Koszelnik v.
Secretary, No. 14-4816, and Saliba v. Attorney General, No. 15-
3769, on this day dealing with similar issues. Each opinion is a
further precedent supporting the other opinion.

4
 III. FACTUAL AND PROCEDURAL BACKGROUND2

Saliba is a native and citizen of Syria. (Petition for
Review (“Pet.”) ¶ 6). He entered the United States on or about
December 25, 1988, (Pet. ¶ 12), on a non-immigrant student
visa, Saliba v. Att’y Gen., No. CIV. A. 14-6174 KSH, 2015 WL
5554772, at *1 (D.N.J. Sept. 18, 2015). In or around January
1992, he filed for TPS3 claiming to be a citizen of Lebanon and

2
Inasmuch as this case is on appeal from an order granting a
Rule 12(b)(6) motion to dismiss, we recite the facts on the basis
of the allegations in Saliba’s petition for review, which we
accept as true on this appeal. See James v. City of Wilkes–
Barre, 700 F.3d 675, 679 (3d Cir. 2012).

3
The Attorney General has authority to grant TPS to eligible
foreign nationals if she finds that their origin countries are
experiencing ongoing armed conflict, environmental disaster, or
other extraordinary and temporary conditions. See 8 U.S.C. §
1254a(b)(1)(A)-(C). The Attorney General may designate a
foreign country, or a particular part of such country, only “after
consultation with appropriate agencies of the Government.” 8
U.S.C. § 1254a(b). During the time that TPS remains in effect
with respect to a particular country as an eligible under the TPS
program, individuals awarded that status by reason of that
country’s designation are not required to leave the United States
and may obtain work authorization. 8 U.S.C. § 1254a(a)(1)(A)-
(B). The Attorney General may terminate an alien’s TPS if she
determines that the alien’s country of origin no longer meets the
conditions for designation under the statute. 8 U.S.C. §

5
“submitted falsified documents which stated [that] he was a
citizen of Lebanon.” (Pet. ¶ 13). Saliba alleges that he decided
to submit these falsified documents with his TPS application
because the “state of war” that existed at that time in the Middle
East made him “fear for his life.”4 (Pet. ¶ 14). Despite these
falsified documents—or more accurately, by reason of them—
the “Immigration and Naturalization Service” (“INS”) granted
Saliba TPS status. Saliba, 2015 WL 5554772, at *1. Saliba’s
actual nation of origin, Syria, was not designated as a country
whose citizens were eligible for TPS at the time that Saliba
sought the benefit of that status, though it was designated as
being within that program on March 29, 2012. See Designation
of Syrian Arab Republic for Temporary Protected Status, 77

1254a(b)(3)(B). The statutory process contemplates that if the
Attorney General terminates a country’s eligibility for TPS
designation, individuals with that designation from that country
return to the same immigration status that they previously held
(unless that status has expired or been terminated) or to any
other status they may have been granted while registered for
TPS. E.g., Designation of El Salvador Under Temporary
Protected Status Program, 66 Fed. Reg. 14214 (Mar. 9, 2001).

4
The District Court stated that Saliba submitted a fraudulent
Lebanese passport and birth certificate as part of his TPS
application. Saliba, 2015 WL 5554772, at *1. In his briefing,
Saliba acknowledges that he submitted a fraudulent Lebanese
passport but claims that he never submitted a Lebanese birth
certificate. Appellant’s br. at 9; Appellant’s Reply br. at 6.
Saliba’s contention on this point is immaterial as his petition
concedes that he “submitted falsified documents which stated he
was a citizen of Lebanon.” (Pet. ¶ 13).

6
Fed. Reg. 19026-01 (Mar. 29, 2012).

Seven years later, on July 22, 1999, Saliba filed an I-485
application to register as a permanent resident or to adjust his
status to that of a LPR. (Pet. ¶ 17). As part of his I-485
application, Saliba submitted documents that accurately
identified him as a native and citizen of Syria and provided his
date of entry into the United States. (Pet. ¶ 18). His responses
on the application itself, however, were less accurate. For
example, the District Court found significant that Saliba wrote
“NONE” in the space on the application that requested the
applicant’s existing A number, i.e., his registration number, and
when asked in Question 10 on Part 3 of the application whether
he “by fraud or willful misrepresentation of a material fact, ever
sought to procure, or procured . . . any other immigration
benefit,” Saliba answered “NO.” Saliba, 2015 WL 5554772, at
*1 (citing the Borgen Decl., Ex. C).

Saliba had an obvious motive to provide dishonest
responses on his I-485 application. If his fraudulent
procurement of TPS and his existing A number came to light at
the time that he applied to adjust his status to a LPR, he would
have been rendered statutorily “inadmissible” under 8 U.S.C. §
1182(a)(6)(C)(i) and therefore ineligible to become a LPR.
Saliba’s petition does not address his inaccurate responses on his
I-485 application, but, instead, alleges that the “USCIS had the
information about his prior TPS application, [] [because] they
crossed out the old A number through the Temporary Protected
Status application that was on the I-485 Application and wrote
in a new A number.”5 (Pet. ¶ 20). He asserts that the INS’s

5
Saliba’s briefing further expands on his allegation that the INS

7
apparent replacement of his old A number with a new A number
constituted a waiver of his inadmissibility pursuant to 8 U.S.C. §
1182(a)(6)(c)(iii). (Pet. ¶ 22). Regardless of whether Saliba’s
contentions have merit, on February 14, 2001, the INS approved
his application and his status was adjusted to that of a LPR.
(Pet. ¶ 21).

Five years later, on February 23, 2006, Saliba applied for
naturalization pursuant to 8 U.S.C. § 1427(a). (Pet. ¶ 24). But
the USCIS denied his application on January 22, 2008, because
it determined that he had not been lawfully admitted for
permanent residence. (Pet. ¶ 25). In particular, the USCIS
concluded that Saliba was not lawfully admitted to the United
States for permanent residence because, at the time of his
adjustment to that status, he was excludable/inadmissible
pursuant to INA § 212(a)(6)(c)(i)6 based on his TPS fraud. (Pet.

waived his inadmissibility after being apprised of his TPS fraud.
For example, Saliba asserts that his “TPS A number was written
into the [I-485] application, and then crossed out by USCIS and
the new number associated with the I-485 Application written in
its place in completely different handwriting.” Appellant’s br. at
2. He further claims that the Government submitted a copy of
his I-485 with its motion to dismiss which is “inconsistent and
obscures this Court’s ability to determine when the marks on the
application were added” and when “various color pens” were
used on the application. Appellant’s Reply br. at 2.

6
Immigration and Nationality Act § 212(a)(6)(C)(i), 8 U.S.C. §
1182(a)(6)(C)(i), states the following: “Any alien who, by fraud
or willfully misrepresenting a material fact, seeks to procure (or
has sought to procure or has procured) a visa, other

8
¶ 25 & Ex. A, at 2).

Two months later, on March 26, 2008, the USCIS issued
Saliba a notice to appear before an immigration judge (“IJ”).
(Pet. ¶ 26). The notice indicated that Saliba was subject to
removal based on his submission of a fraudulent Lebanese
passport and birth certificate to establish TPS eligibility in 1992.
(Pet. ¶ 26 & Ex. A, at 2). On July 8, 2009, however, the IJ
terminated the removal proceedings because of our holding in
Garcia v. Attorney General, 553 F.3d 724 (3d Cir. 2009), which
we decided on January 14, 2009. (Pet. ¶ 27). In Garcia, we held
that a five-year statute of limitations for rescission of LPR status
also applies to the initiation of removal proceedings predicated
on the circumstance that the alien improperly obtained LPR
status. 553 F.3d at 728-29.

On March 19, 2012, Saliba filed a second application for
naturalization. (Pet. ¶ 29). The USCIS denied this second
application ten months later, on January 22, 2013, because of its
prior conclusion that Saliba’s submission of falsified Lebanese
documents with his TPS application rendered him statutorily
inadmissible for naturalization. (Pet. ¶ 30). Saliba filed a Form
N-336, Request for Hearing on a Decision in Naturalization
Proceedings on February 26, 2013, which resulted in a hearing
on April 30, 2013. (Pet. ¶¶ 31, 32). But on June 5, 2014, the
USCIS reaffirmed its denial of Saliba’s second application for
naturalization. (Pet. ¶ 33).

On October 3, 2014, Saliba filed a timely petition in the

documentation, or admission into the United States or other
benefit provided under this chapter is inadmissible.”

9
District Court for review of the USCIS’s denial of his second
application for naturalization. In his petition, Saliba first asserts
that the misrepresentations that he made in his application for
TPS were immaterial and not willful. (E.g., Pet. ¶¶ 37, 38, 40).
In addition, Saliba maintains that even if his misrepresentations
were material, the INS waived his inadmissibility when it
granted him LPR status, and the USCIS implicitly waived his
inadmissibility through its subsequent failure to rescind his LPR
status within the five-year statutory window for taking such an
action. (E.g., Pet. ¶¶ 36, 39, 43, 44, 57, 58). On December 23,
2014, the Government moved to dismiss the petition pursuant to
Rule 12(b)(6), or, in the alternative, moved for summary
judgment.

Nine months later, on September 18, 2015, the District
Court granted the Government’s motion to dismiss. Saliba,
2015 WL 5554772, at *7. It determined that the USCIS
properly denied Saliba’s application for naturalization because
he was not “lawfully admitted for permanent residence” on
account of his fraudulent procurement of TPS. Id. at *6. The
Court further concluded that Saliba did not obtain a waiver of
inadmissibility because “even if the INS was aware of Saliba’s
TPS application when it adjudicated [his] application to adjust
status, he was ineligible for a waiver under 8 U.S.C. § 1182(i),
and the Service did not have the legal authority to waive
inadmissibility on any other grounds.” Id. at *5. It also rejected
Saliba’s contention that the USCIS’s failure to rescind his LPR
status and initiate removal proceedings within the five-year
statute of limitations period constituted an implicit waiver of
inadmissibility for purposes of naturalization. Id. at *5-6.
Specifically, the Court reasoned that “the Garcia decision is
limited to removal/rescission proceedings and has no application

10
to petitions for naturalization.” Id. at *6. The Court thus
dismissed Saliba’s petition, and on November 6, 2015, Saliba
timely filed a notice of appeal to this Court.

IV. STANDARD OF REVIEW

Our review of a district court’s dismissal of a petition for
review under Rule 12(b)(6) is plenary. See Chavarriaga v. N.J.
Dep’t of Corr., 806 F.3d 210, 218 (3d Cir. 2015). We first
“tak[e] note of the elements a plaintiff must plead to state a
claim.” Ashcroft v. Iqbal, 556 U.S. 662, 675, 129 S.Ct. 1937,
1947 (2009). Then, we identify the allegations that, “because
they are no more than conclusions, are not entitled to the
assumption of truth.” Id. at 679, 129 S.Ct. at 1950. Finally, we
assume the veracity of well-pleaded factual allegations and
“determine whether they plausibly give rise to an entitlement to
relief.” Id.; see also Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570, 127 S.Ct. 1955, 1974 (2007) (explaining that a plaintiff
must plead “enough facts to state a claim to relief that is
plausible on its face”). In making this determination, “[w]e
consider only the complaint, exhibits attached to the complaint,
matters of public record, as well as undisputedly authentic
documents if the complainant’s claims are based upon these
documents.” Guidotti v. Legal Helpers Debt Resolution, L.L.C.,
716 F.3d 764, 772 (3d Cir. 2013) (citation and internal quotation
marks omitted).

V. JUDICIAL REVIEW OF NATURALIZATION
DENIALS

11
 We review naturalization denials through a distinct lens.
Pursuant to 8 U.S.C. § 1421(c), a district court’s “review shall
be de novo, and the court shall make its own findings of fact and
conclusions of law . . . .” As a consequence, judicial review of
naturalization denials “is not limited to any administrative
record but rather may be on facts established in and found by the
district court de novo.” Aparicio v. Blakeway, 302 F.3d 437,
445 (5th Cir. 2002); see also Abulkhair v. Bush, 413 F. App’x
502, 507-08 (3d Cir. 2011).

Significantly, an applicant for naturalization has the
burden of proving “by a preponderance of the evidence that he
or she meets all of the requirements for naturalization.” 8
C.F.R. § 316.2(b); see also Bagot v. Ashcroft, 398 F.3d 252,
256-57 (3d Cir. 2005); Abulkhair, 413 F. App’x at 508.
“[S]trict compliance with all the congressionally imposed
prerequisites to” citizenship is required, Fedorenko v. United
States, 449 U.S. 490, 506, 101 S.Ct. 737, 747 (1981); United
States v. Szehinskyj, 277 F.3d 331, 334 (3d Cir. 2002), and “the
burden is on the alien applicant to show his eligibility for
citizenship in every respect,” INS v. Pangilinan, 486 U.S. 875,
886, 108 S.Ct. 2210, 2217-18 (1988) (quoting Berenyi v. Dist.
Dir., INS, 385 U.S. 630, 637, 87 S.Ct. 666, 670-671 (1967)).
Thus, as the Supreme Court has explained, “when doubts exist
concerning a grant of [citizenship], generally at least, they
should be resolved in favor of the United States and against the
claimant.” United States v. Manzi, 276 U.S. 463, 467, 48 S.Ct.
328, 329 (1928) (citation omitted); see also Bagot, 398 F.3d at
257; Ogundoju v. Att’y Gen., 390 F. App’x 134, 137 (3d Cir.
2010).

VI. DISCUSSION

12
 Saliba maintains that he did not willingly make any
material misrepresentations to obtain TPS, and that, even if he
did, the INS and USCIS waived any bar to his admissibility
attributable to his misrepresentations when they granted him
LPR status and did not rescind that status within the five-year
statute of limitations period for taking such action. We
conclude, as did the District Court, that Saliba’s misstatements
at the time that he applied for TPS were necessarily material—
making him statutorily “inadmissible” for permanent
residence—and that Saliba neither applied for nor obtained a
waiver of inadmissibility under 8 U.S.C. § 1182(i)(1).
Accordingly, Saliba was not “lawfully admitted” for permanent
residence and we are constrained to affirm the District Court’s
September 18, 2015 order dismissing his petition for review.

A. Saliba Obtained TPS by Fraud and is
thus “Inadmissible” for Permanent Residence

We divide the issue that we examine on this appeal—
whether Saliba is eligible for naturalization—into three sub-
issues. The first sub-issue is whether Saliba obtained TPS by
fraud or by willfully misrepresenting a material fact, because,
unless he did so, the Government has no basis to claim that
Saliba was not “lawfully admitted” for permanent residence
when he adjusted his status to that of a LPR in 2001.

To adjust his status so that he would be a LPR, i.e., to
become lawfully admitted for permanent residence, Saliba had
to be, among other requirements, “admissible to the United
States for permanent residence” at the time of his adjustment. 8
U.S.C. § 1255(a). Significantly, pursuant to 8 U.S.C. §
1182(a)(6)(C)(i) an alien who, “by fraud or willfully

13
misrepresenting a material fact, seeks to procure (or has sought
to procure or has procured) a visa, other documentation, or
admission into the United States or other benefit,” is statutorily
inadmissible for permanent residenceemphasis added).
Inasmuch as it is undisputable that TPS is an “other benefit”
within the meaning of 8 U.S.C. § 1182(a)(6)(C)(i), the question
before us with respect to Saliba obtaining a benefit is whether he
obtained TPS “by fraud or willfully misrepresenting a material
fact.” 8 U.S.C. § 1182(a)(6)(C)(i). The District Court
concluded that Saliba’s misrepresentations of his citizenship
when he applied for TPS were necessarily material to his
procurement of that status. See Saliba, 2015 WL 5554772, at *4
(citing 8 U.S.C. § 1182(a)(6)(C)(i) and Aoko v. Holder, 518 F.
App’x 169, 176 (4th Cir. 2013)); Appellees’ br. at 17-18. We
agree.

Saliba admits in his petition that, prior to adjusting his
status, he obtained TPS by submitting falsified documents
stating that he was a Lebanese citizen. (See Pet. ¶ 13). These
admittedly falsified documents were unquestionably material7 to

7
A fact is material if: (1) “the alien is excludable on the true
facts,” Mwongera v. INS, 187 F.3d 323, 330 (3d Cir. 1999); (2)
“the misrepresentation tends to shut off a line of inquiry which
is relevant to the alien’s eligibility and which might well have
resulted in a proper determination that he be excluded,” id.; or
(3) the misrepresentations “had a natural tendency to influence
the decisions of the” decision-making body to which it was
presented. Kungys v. United States, 485 U.S. 759, 772, 108
S.Ct. 1537, 1547 (1988). As we explain, an alien’s citizenship
is necessarily material with respect to his application for a
country-specific immigration benefit such as TPS. It defies

14
Saliba’s procurement of TPS because the Government did not
designate his home country, Syria, as an eligible country under
the TPS program until 2012. See Designation of Syrian Arab
Republic for Temporary Protected Status, 77 Fed. Reg. 19026-
01. Thus, Saliba could not have been granted TPS if he had
submitted legitimate documents, and his concededly “clear
misrepresentation” of the facts (Pet. ¶ 44) and
“misrepresent[ation] of his nationality to obtain Temporary
Protected Status,” (Pet. ¶ 22), rendered him inadmissible for
permanent residence as a matter of law. See 8 U.S.C. §
1182(a)(6)(C)(i).

Saliba resists this conclusion by stating that his decision
to submit falsified Lebanese documents was involuntary and
made under duress, due to his fear of the war-time conditions
plaguing the Middle East at the time of his TPS application.
Appellant’s br. at 8; (see also Pet. ¶¶ 14, 37) (“At the time of the
Temporary Protected Status application, the Middle East . . . was
in a state of war, and [Saliba] acted in fear for his life.”). Saliba
thus claims that, even if the fact of his Syrian citizenship was
material, he did not “willfully misrepresent[]” his citizenship to
obtain TPS. 8 U.S.C. § 1182(a)(6)(C)(i) (emphasis added).
This argument fails because the willfulness of his
misrepresentation is not mitigated by external circumstances.

logic to claim that Saliba’s submission of falsified documents to
represent that he was a citizen of Lebanon—a country
designated under the TPS program at the time of Saliba’s TPS
application—did not materially contribute to his procurement of
TPS when he was actually a citizen of Syria, a country not
designated under the TPS program at that time.

15
Saliba could have sought asylum from Syria rather than
misrepresent his citizenship to file for TPS. See generally 8
U.S.C. § 1150. Moreover, one of the statutory grounds on
which the Attorney General may designate a foreign state so that
its nationals are eligible for TPS is if she makes a finding that
“there is an ongoing armed conflict within the state and, due to
such conflict, requiring the return of aliens who are nationals of
that state to that state (or to the part of the state) would pose a
serious threat to their personal safety[.]” 8 U.S.C. §
1254a(b)(1)(A). At the time that Saliba applied for TPS, the
Attorney General had not found that there was such an ongoing
armed conflict in Syria—the foreign state of which Saliba was a
citizen—that threatened the personal safety of Syrian nationals
justifying Syria’s designation under the TPS program.
Accordingly, Saliba’s claimed subjective fear of returning to
Syria does not provide a basis for us to reach a conclusion that
his submission of falsified documents to obtain TPS was an
involuntary act.8 Inasmuch as he obtained TPS “by fraud or
willfully misrepresenting a material fact,” he was statutorily
“inadmissible” for permanent residence pursuant to 8 U.S.C. §
1182(a)(6)(C)(i), and thus there was a mandatory ground

8
We do not agree with Saliba’s contention that we should apply
the voluntariness standard used in considering the validity of
guilty pleas in the criminal context, articulated by the Supreme
Court in Brady v. United States, 397 U.S. 742, 748, 90 S.Ct
1463, 1469 (1970), in this case. We reject this contention
because the circumstances of immigration cases are
distinguishable from criminal cases. In any event, it is not clear
that, despite Saliba’s arguments to the contrary, the application
of the Brady standard would benefit him.

16
requiring the denial of his application for adjustment of his
status to that of a LPR.

B. Saliba’s Inadmissibility for Permanent
Residence Renders him Unable to Naturalize

As we have indicated, the INS mistakenly granted Saliba
LPR status despite his statutory inadmissibility. (See Pet. ¶ 21).
This circumstance gives rise to the second sub-issue on appeal:
whether, notwithstanding his current LPR status, Saliba’s
statutory inadmissibility for permanent residence means that he
never was “lawfully admitted” for permanent residence—a
prerequisite to naturalization.9 Pursuant to 8 U.S.C. § 1429, “no
person shall be naturalized unless he has been lawfully admitted
to the United States for permanent residence in accordance with
all applicable provisions of this chapter.” See also id. § 1427(a)
(“No person . . . shall be naturalized unless such applicant . . .
has resided [in the United States] continuously, after being
lawfully admitted for permanent residence . . . .”). Because
Saliba was inadmissible for permanent residence based on a
mandatory statutory ground, 8 U.S.C. § 1182(a)(6)(C)(i), the
Government maintains that although he must be regarded as
having been admitted for permanent residence by reason of the
expiration of the five-year period for rescinding his LPR status,
he was not lawfully admitted.

9
Though the Government acknowledges that our holding in
Garcia precludes it from now rescinding Saliba’s LPR status or
removing him, it contends that Saliba is nonetheless
“inadmissible” for naturalization because he never was
“lawfully admitted” for permanent residence. See, e.g.,
Appellees’ br. at 24. We deal later with this point in detail.

17
 Section 1101(a)(20) of Title 8 of the United States Code
defines the term “lawfully admitted” 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.” We have
explained that “the term ‘lawfully’ denotes compliance with
substantive legal requirements, not mere procedural regularity.”
Gallimore v. Att’y Gen., 619 F.3d 216, 223 & n.6 (3d Cir.
2010) (citation and internal editorial marks omitted); see also,
e.g., Arellano-Garcia v. Gonzales, 429 F.3d 1183, 1187 (8th Cir.
2005) (“[L]awful status is required, not simply lawful
procedure.”); Matter of Longstaff, 716 F.2d 1439, 1441 (5th Cir.
1983) (“Admission is not lawful if it is regular only in form.”);
In Re Koloamatangi, 23 I. & N. Dec. 548, 550 (BIA 2003)
(same). “Thus, an alien whose status has been adjusted to
LPR—but who is subsequently determined to have obtained that
status adjustment through fraud—has not been ‘lawfully
admitted for permanent residence’ because the ‘alien is deemed,
ab initio, never to have obtained [LPR] status.” Gallimore, 619
F.3d at 223 (emphasis and alteration in original) (quoting
Koloamatangi, 23 I. & N. Dec. at 551).

Moreover, our emphasis on substance over form in
determining whether a LPR was “lawfully admitted” for
permanent residence extends beyond the context of fraud or
misrepresentations. As we observed in Gallimore, even
“[w]here an alien obtains LPR status through administrative
oversight—despite being ineligible for that status for one reason
or another—several of our sister courts of appeals have deferred
to BIA decisions concluding that the alien has not been
‘lawfully admitted for permanent residence.’” Id. at 224 & n.6

18
(collecting cases from various courts of appeals). We joined
these decisions cited in Gallimore, and held that “an alien whose
status has been adjusted to lawful permanent resident but who is
subsequently determined in an immigration proceeding to have
originally been ineligible for that status has not been ‘lawfully
admitted for permanent residence.’” Id. at 224-25 (citations
omitted). We were clear that this determination applied
regardless of whether the applicant’s LPR status was not lawful
“because the applicant procured it through fraud” or “because
the applicant was not legally entitled to it for any other reason.”
Id. at 224; see also Koloamatangi, 23 I. & N. Dec. at 550 (“[A]n
alien was not ‘lawfully’ admitted for permanent resident status
if, at the time such status was accorded, he or she was not
entitled to it.”).

Based on our conclusion that Saliba obtained TPS “by
fraud or willfully misrepresenting a material fact,” 8 U.S.C. §
1182(a)(6)(C)(i), it is clear that he never was “lawfully admitted
for permanent residence” and is thus ineligible for
naturalization, 8 U.S.C. §§ 1427(a), 1429. Our precedent is
clear that, even if the INS erroneously granted Saliba LPR status
based on his fraudulent application claiming to be a citizen of
Lebanon or based on his partial misstatements on his I-485
application for adjustment of status, see Saliba, 2015 WL
5554772, at *1 (citing the Borgen Decl., Ex. C), the INS’s error
nevertheless undermines the lawfulness of his LPR status, see
Gallimore, 619 F.3d at 224-25. After all, Saliba’s procurement
of TPS and subsequent adjustment to LPR status are not solely
attributable to administrative error or circumstances unrelated to
his fraudulent claims. Quite to the contrary, by fraudulently
claiming to be a citizen of Lebanon when he sought TPS he set
in motion the whole problem regarding his status.

19
 The inescapable fact is that Saliba, as he admits, made a
“clear misrepresentation” when he “submitted falsified
documents which stated [that] he was a citizen of Lebanon.”
(Pet. ¶¶ 13, 44). Thus, Saliba’s petition removes any doubt that
he failed to comply with the substantive legal requirements that
govern applications for TPS. In addition, Saliba’s inaccurate
responses regarding his TPS on his I-485 application for
adjustment of status to that of a LPR contradict any claim that
his fraudulent behavior remained confined to his TPS
application. Saliba’s fraudulent procurement of his TPS renders
him “inadmissible” for permanent residence under 8 U.S.C. §
1182(a)(6)(C)(i), and, though the INS mistakenly granted him
LPR status, a circumstance that shows that lawful procedure was
followed in his case, the lawfulness of the procedure does not
mean that he attained lawful status as a LPR. Rather, lawful
status as a permanent resident must be established under 8
U.S.C. §§ 1427(a) and 1429 for an applicant to be eligible for
naturalization, and because Saliba cannot demonstrate that he
was “lawfully admitted for permanent residence” as that phrase
has been interpreted uniformly by the courts of appeals, he
cannot be naturalized.

C. Neither the INS nor the USCIS Waived Saliba’s
Inadmissibility

Our conclusion that Saliba fraudulently procured TPS,
which rendered him “inadmissible” and not “lawfully admitted”
for permanent residence, brings us to the third and final sub-
issue in our trilogy: whether the Government waived the barriers
to his admissibility. The District Court concluded, and the
Government maintains on appeal, that there is no evidence in the

20
record to show that Saliba applied for, or ever obtained, a
waiver of inadmissibility. Saliba, 2015 WL 5554772, at *5;
Appellees’ br. at 19. Saliba responds that a determination of
whether he “applied for, requested or [was] granted” a waiver is
a question of fact that “can and should be resolved in
discovery.” Appellant’s br. at 10. Specifically, Saliba contends
that the INS and the USCIS granted him a waiver when: (1) the
INS approved his adjustment of status to that of a LPR in 2001
despite its alleged awareness that he previously had applied for
TPS under another A number, (e.g., Pet. ¶ 44); and (2) the
USCIS failed to rescind his LPR status or seek to remove him
from this country before the expiration of the five-year statute of
limitations for taking such an action under 8 U.S.C. § 1256(a),
(e.g., Pet. ¶¶ 42-43). We do not agree with Saliba that either of
these considerations, even taken at face value, constitute a
waiver of inadmissibility. Saliba never obtained a waiver
pursuant to 8 U.S.C. § 1182(i)(1), which is the sole basis on
which a waiver may be granted.

1. Implicit Waiver by the INS when Saliba
became a LPR

Saliba contends that the reviewing INS officer waived his
inadmissibility when the INS granted him LPR status in 2001.
An applicant’s “inadmissibility” under 8 U.S.C. §
1182(a)(6)(C)(i), based on his fraud or willful misrepresentation
of a material fact, can be waived under 8 U.S.C. § 1182(i)(1),10
which reads as follows:

10
8 U.S.C. § 1182(a)(6)(C)(iii) authorizes a waiver of
inadmissibility under 8 U.S.C. § 1182(a)(6)(C)(i) and directs
that the applicable waiver provision is 8 U.S.C. § 1182(i)(1).

21
 The Attorney General may, in the
discretion of the Attorney General,
waive the application of clause (i)
of subsection (a)(6)(C) of this
section in the case of an immigrant
who is the spouse, son, or daughter
of a United States citizen or of an
alien lawfully admitted for
permanent residence if it is
established to the satisfaction of the
Attorney General that the refusal of
admission to the United States of
such immigrant alien would result
in extreme hardship to the citizen or
lawfully resident spouse or parent
of such an alien or, in the case of a
VAWA self-petitioner, the alien
demonstrates extreme hardship to
the alien or the alien’s United
States citizen, lawful permanent
resident, or qualified alien parent or
child.

Significantly, a formal application for a waiver under this
section is “the sole method of requesting the exercise of
discretion under sections 212(g), (h), (i), and (k) of the
[Immigration and Nationality] Act (“INA”), as they relate to the
inadmissibility of an alien in the United States.”11 8 C.F.R. §

11
Section 212(i) of the INA codifies, using identical language,
the “fraud or willful misrepresentation” waiver of

22
245.1(f) (emphasis added). In addition, a waiver applicant must
“apply for the related waiver by filing the form designated by
USCIS, with the fee prescribed in 8 C.F.R. § 103.7(b)(1), and in
accordance with the form instructions.” Id. § 212.7(a)(1); see
also Khan v. Johnson, No. 2:14-CV-06288-CAS(CWX), 2016
WL 429672, at *11 (C.D. Cal. Feb. 1, 2016) (“[A]n applicant is
required to submit a formal application requesting a waiver and
pay a fee. . . . Unless an applicant complies with these
regulations, USCIS is not permitted to waive the applicant’s bar
to admissibility.”). Saliba does not allege that he complied with
these formal waiver application processes.

Although 8 C.F.R. § 245.1 states that the formal waiver
application process is the sole method for an otherwise
inadmissible applicant like Saliba to obtain a waiver of
inadmissibility, he fails to provide any evidence that he applied
for, or obtained, a waiver under 8 U.S.C. § 1182(i)(1). He,
instead, contends that there is an issue of fact as to whether the
INS was aware of his fraudulent procurement of TPS when it
approved his application to adjust his status to that of a LPR in
2001. (Pet. ¶¶ 36, 38, 39, 44); see also Appellant’s br. at 10-11.
As support, Saliba alleges that his I-485 application for LPR
status shows that his original A number, assigned when he
obtained TPS in 1991, was written on his application for LPR
status in red ink but an INS officer subsequently crossed it out
using dark colored ink, after which the same person replaced the
“old” A number with his “new” A number. (Pet. ¶¶ 20, 38, 39);

inadmissibility authorized by Congress under 8 U.S.C. §
1182(i)(1). For the sake of consistency, we usually have cited to
the United States Code sections for provisions that have parallel
INA citations.

23
see also Appellant’s br. at 10. Saliba contends that the cross-
outs on the document “show[] that the issue of [his]
misrepresentation was addressed by the officer reviewing the
file,” Appellant’s br. at 12, and that through this proposed
sequence of events, the INS implicitly waived any grounds for
inadmissibility that may have existed at the time that he became
an LPR, (e.g., Pet. ¶¶ 22, 44).

In dealing with the waiver point, we note that we do not
agree with Saliba that the INS’s apparent crossing out of his
“old” A number, coupled with the insertion of his “new” A
number in different colored ink, provide any evidence that a INS
officer intended to grant him a waiver of inadmissibility. It is
clear that the inference that Saliba seeks to draw from his I-485
application, i.e., that a specific INS officer intended to grant him
a waiver of inadmissibility, is not the only inference that can be
drawn from the change of A numbers. After all, because a new
number was assigned to a new application, for all we know the
officer changed the numbers because the officer believed that
the change was proper procedure inasmuch as Saliba filed
separate applications for TPS and LPR status. Yet in order to
survive a Rule 12(b)(6) motion to dismiss, Saliba must “nudge
[his] claim[] across the line from conceivable to plausible,” an
achievement that cannot be accomplished through the type of
speculative allegations that make up his colored-pens, cross-out
theory. Twombly, 550 U.S. at 570, 127 S.Ct. at 1974.

In any event, regardless of the INS officer’s intent, and
taking the factual allegations of Saliba’s petition as true, the
circumstances surrounding his I-485 application for LPR status
are insufficient as a matter of law to constitute a waiver of
inadmissibility. As we have indicated, an application for waiver

24
of inadmissibility under 8 U.S.C. § 1182(i)(1) is “the sole
method of requesting” such a waiver. 8 C.F.R. § 245.1(f)
(emphasis added). Thus, even if the INS reviewing officer
intended to waive Saliba’s inadmissibility, and even if that
officer had been fully aware of Saliba’s prior TPS fraud, the
officer lacked legal authority to waive the bars to Saliba’s
admissibility. See Saliba, 2015 WL 5554772, at *5. In the
absence of any evidence in the record showing that Saliba was
eligible for, applied for, and obtained a waiver of inadmissibility
under the procedures set forth in 8 U.S.C. § 1182(i)(1), and its
implementing regulations, Saliba’s inadmissibility was not
waived at the time that he became a LPR.

2. Failure to Rescind LPR Status within the
Five-Year Statute of Limitations in 8 U.S.C. §
1256(a)12

Saliba also contends that the five-year statute of
limitations that governs commencement of removal proceedings
and rescission of LPR status under 8 U.S.C. § 1256(a) “should
serve as a waiver” of “known grounds of disability” for
purposes of his application for naturalization. (Pet. ¶ 43; see
also Pet. ¶ 42). He maintains that the holdings of Garcia and
Matter of Saunders, 16 I. & N. Dec. 326 (BIA 1977), support his
assertion that “his misrepresentation implicitly was waived by
USCIS’s failure to rescind his [LPR] status within five years.”
(Pet. ¶ 58). Saliba essentially argues that since the USCIS
cannot now rescind his LPR status or seek to remove him, it has
no grounds on which to deny his application for naturalization.

12
The parallel provision in the Immigration and Nationality Act
is section 246(a).

25
We disagree, and because neither section 1256(a), nor the cases
interpreting its applicability, support the view that the USCIS
implicitly waived Saliba’s inadmissibility, we conclude that his
fraudulent procurement of TPS precludes his attempt to
naturalize.

The natural “starting place in our inquiry” with respect to
8 U.S.C. § 1256(a) is the plain language of the statute. United
States v. Introcaso, 506 F.3d 260, 264 (3d Cir. 2007) (quoting
Staples v. United States, 511 U.S. 600, 605, 114 S.Ct. 1793,
1797 (1994)). When we examine the plain language of section
1256(a), we are satisfied that it does not affect or implicate
naturalization eligibility. The statute provides that:

If, at any time within five years
after the status of a person has been
otherwise adjusted under the
provisions of section 1255 or 1259
of this title or any other provision
of law to that of an alien lawfully
admitted for permanent residence,
it shall appear to the satisfaction of
the Attorney General that the
person was not in fact eligible for
such adjustment of status, the
Attorney General shall rescind the
action taken granting an adjustment
of status to such person and
cancelling removal in the case of
such person if that occurred and the
person shall thereupon be subject to
all provisions of this chapter to the

26
 same extent as if the adjustment of
status had not been made. Nothing
in this subsection shall require the
Attorney General to rescind the
alien’s status prior to
commencement of procedures to
remove the alien under section
1229a of this title, and an order of
removal issued by an immigration
judge shall be sufficient to rescind
the alien’s status.

8 U.S.C. § 1256(a) (emphasis added). By its terms, the statute
imposes a five-year limitation on rescission of a grant of LPR
status and removal of aliens. See Malik v. Att’y Gen., 659 F.3d
253, 257 (3d Cir. 2011); Garcia, 553 F.3d at 728.

Although we seem never to have opined directly on the
issue, several district courts in this circuit have reached the
conclusion that “the plain language of the statute does not in any
way contemplate extension of the limitations period to the
naturalization process.” Jin Mei Lin v. Napolitano, No. CIV. A.
11-6373, 2013 WL 2370588, at *5 (E.D. Pa. May 31, 2013),
aff’d sub nom. Jin Mei Lin v. Sec’y U.S. Dep’t of Homeland
Sec., 613 F. App’x 207 (3d Cir. 2015); accord Adegoke v.
Fitzgerald, 784 F. Supp. 2d 538, 541 (E.D. Pa. 2011)
(“[Petitioner] argues that § 1256(a) extends beyond the
rescission context and confirms that his LPR status is not void
for purposes of naturalization. It does not.”); Monge v. Holder,
No. CIV. A. 09-4949-FLW, 2010 WL 3907363, at *5 (D.N.J.
Sept. 29, 2010) (“Because the government seeks neither to
rescind Petitioner’s LPR status nor remove him from the

27
country, 8 U.S.C. § 1256(a) does not apply in this case.”).

Unlike Saliba, we agree with the district courts’
recognition in those cases that rescission, removal, and
naturalization raise “entirely distinct legal questions,” and
though section 1256(a) deals with rescission and removal, it
does not concern naturalization. Ros v. Napolitano, No. 12-CV-
321, 2013 WL 3479419, at *9 (E.D. Pa. July 11, 2013); see also
8 U.S.C. § 1429 (“[T]he findings of the Attorney General in
terminating removal proceedings or in canceling the removal of
an alien pursuant to the provisions of this chapter, shall not be
deemed binding in any way upon the Attorney General with
respect to the question of whether such person has established
his eligibility for naturalization as required by this subchapter.”).

This logical reading of the statute is consistent with our
holding in Gallimore in which we explained that an alien who
becomes a LPR despite being “inadmissible” has not been
“lawfully admitted” for permanent residence. 619 F.3d at 223.
In that case, the INS granted the alien conditional LPR status in
July 1994, and later removed conditions on his LPR status in
August 1996. Id. at 219. The alien applied for naturalization
more than five years later, in December 2001, but the INS
denied his application and initiated removal proceedings after it
became aware that he had not disclosed his prior criminal
conviction. Id. Although our analysis in that case focused on
the issue of the alien’s eligibility for a waiver under INA §
212(c), we nonetheless held that the alien never was “lawfully
admitted” for permanent residence, despite the fact that the
limitations period in section 1256(a) had expired prior to the
INS’s naturalization denial. Id. at 224-25.

28
 A holding that an otherwise “unlawful” admission for
permanent residence can be transformed into a “lawful”
admission whenever the limitations period has expired under
section 1256(a) would be inconsistent with Gallimore. After all,
such a conclusion would contradict the Gallimore point that an
alien is not “lawfully admitted” for permanent residence unless
he strictly complies with the “substantive legal requirements” of
the immigration laws. 619 F.3d at 224-25. We are satisfied that
the substantive compliance prerequisite to the grant of
citizenship cannot be circumvented by reliance on a statute of
limitations that by its terms applies only to rescission and
removal, matters distinct from naturalization.

Moreover, the cases that Saliba cites to support his
reading of the statute do not alter our conclusion. Quite the
opposite, they confirm that Saliba has confused his right to
retain his LPR status and remain in this country with a non-
existent entitlement to naturalize. The first, our decision in
Garcia, does not speak to section 1256(a)’s effect on
naturalization at all. As the District Court explained, the rule
from Garcia is that the Department of Homeland Security
(“DHS”) cannot, after section 1256(a)’s limitations period has
expired, initiate removal proceedings based on an alien’s
improperly obtained LPR status. Garcia explicitly upheld the
precedential authority of our earlier decision in Bamidele v INS,
99 F.3d 557, 565 (3d Cir. 1996), which held that the same
statute of limitations—though the pre-1996 amendment
version—barred the initiation of removal proceedings after five
years if based on improperly granted LPR status. 553 F.3d at
728 (“We conclude that Bamidele retains its precedential
authority.”). The holdings in Garcia and Bamidele are rooted in
the language of section 1256(a) that deals with rescission of

29
LPR status and removal. The statute does not include similar
language dealing with naturalization, and, unsurprisingly, the
cases therefore do not discuss naturalization. See Shah v.
Thompson, No. CIV. A. 2:113082 WJM, 2015 WL 113339, at
*5 (D.N.J. Jan. 8, 2015) (reasoning that Garcia does not “disturb
the well-settled principle that the ‘lawfully admitted for
permanent residence’ requirement is not met when an alien’s
adjustment does not comply with the immigration laws”).

The second case on which Saliba relies—and more
precisely, the governing opinion from that case—is similarly
inapposite. Saliba contends that in “Matter of Saunders . . . it
was noted that Section 246 ‘should be read as a waiver and
adjustment of known grounds of disability.’” (Pet. ¶ 41 (quoting
Matter of Saunders, 16 I. & N. Dec. 326, 334-335 (BIA 1977)
(I. Appleman, concurring))). As an initial matter, and as Saliba
correctly indicates, this language is drawn from the concurring
opinion of a single BIA member and not from the BIA’s
governing opinion. Id.; see also Concurrence, Black’s Law
Dictionary, at 331 (9th ed. 2009) (defining “concurrence” as “[a]
vote cast by a judge in favor of the judgment reached, often on
grounds differing from those expressed in the opinion or
opinions explaining the judgment”). Notwithstanding the source
of Saliba’s quotation, the issue in Matter of Saunders concerned
the statute of limitations on rescission of LPR status and
removal proceedings, and did not involve naturalization. And as
the Government explains, the concurring BIA member wrote
separately to voice his concern that “the majority’s holding
would allow the INS to skip the rescission process after the five-
year period had run, and go directly to deportation or exclusion
proceedings.” Appellee’s br. at 24 (citing Matter of Saunders,
16 I. & N. Dec. at 334). Thus, even if the concurrence in Matter

30
of Saunders were the governing opinion, it would be of no
assistance to Saliba.

The Government concedes that DHS cannot rescind
Saliba’s improperly granted LPR status or remove him from this
country on the basis of the current record,13 Appellee’s br. at 24,
but it maintains that section 1256(a) does not apply in the
context of naturalization. See, e.g., Adegoke, 784 F. Supp. 2d at
541; Monge, 2010 WL 3907363, at *5. We find no basis in the
text of section 1256(a), or the cases interpreting its applicability,
to reach an opposite conclusion. Saliba has admitted to
submitting falsified documents that stated that he was a citizen
of Lebanon to obtain TPS and later provided dishonest
responses on his application to become a LPR. Congress
unambiguously has stated that naturalization should be reserved
only for those applicants who can show compliance with the
statutory requirements for citizenship, see Fedorenko, 449 U.S.
at 522, 101 S.Ct. at 747; Szehinskyj, 277 F.3d at 334, but Saliba
has not complied with the immigration laws at any point in the
process. Section 1256(a)’s limitations period does not negate
these facts or waive Saliba’s known grounds of disability for
purposes of his naturalization application.

VII. CONCLUSION

For the foregoing reasons, we will affirm the District

13
We are not suggesting that regardless of any future events, the
Government will never be able to initiate proceedings to remove
Saliba from this country. After all, we have no idea of what
may happen in the future.

31
Court’s September 18, 2015 order dismissing Saliba’s petition
for review.

32