concurring in part and dissenting in part:
Although I concur in the majority’s analysis of the Fifth Amendment issue and agree that the deference we owe to the Board of Immigration Appeals (“BIA”) is defined by Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944), rather than by Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), I respectfully dissent from the majority’s conclusion that the BIA misinterpreted 8 U.S.C. § 1229b(a)(2).
Title 8 U.S.C. § 1229b(a)(2) provides that cancellation of removal is available, at the Attorney General’s discretion, for a legal permanent resident alien (“LPR”) who is inadmissible or deportable if (among other criteria) he “has resided in the United States continuously for 7 years after having been admitted in any status.” (Emphasis added.) There is no dispute that Petitioner’s period of continuous residence ended on June 8, 2001, when he attempted to smuggle an alien into the United States. 8 U.S.C. § 1229b(d)(l). There also is no dispute that Petitioner entered the United States illegally in 1986. The question presented is whether Petitioner was “admitted” to the United States in 1998, when he became an LPR, or in 1993, when he was accepted into the Family Unity Program.
Congress has defined “admitted” as follows:
The terms “admission” and “admitted” mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.
8 U.S.C. § 1101(a)(13). It is reasonable and persuasive for the BIA to rely on that statutory definition of “admitted” in construing the term “admitted” in § 1229b(a)(2).
The majority emphasizes that the “BIA’s analysis suffers fatally,” majority op. at 1015, because the agency held in In re Rosas-Ramirez, 22 I. & N. Dec. 616 (B.I.A.1999), that the attainment of LPR status constitutes “admission,” even when an alien entered without inspection. There are two difficulties with the majority’s conclusion in this regard. First, the BIA’s decision here gave Petitioner the benefit of that interpretation by conceding his “admission” in 1998. Second, and more importantly, the BIA’s decision in Rosas-Ramirez is consistent with its construction of a materially different section of the statute here.
In Rosas-Ramirez the BIA majority relied on the fact that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. *10213009 (Sept. 30, 1996), provides for removal of aliens who, it turns out, were in admissible “ ‘at the time of entry or adjustment of status.’ ” 22 I. & N. Dec. at 621 (emphasis added) (quoting § 237(a)(1)(A) of the Act). The decision reasoned that this section — by referring to those who were in admissible either at the time of entry or at the time of adjustment of status — implicitly recognizes its opposite: that aliens can be admissible, and admitted, either at the time of entry or at the time of adjustment of status. Id. at 621-23. The BIA majority in Rosas-Ramirez also pointed to the fact that 8 U.S.C. § 1101(a)(20) defines the term “ ‘lawfully admitted for permanent residence’ ” as a “status” rather than as an event, a definition of admission in the LPR context that encompasses both admissions to LPR status at the border and later adjustment to LPR status. 22 I. & N. Dec. at 618-19 (emphasis added).
By contrast, the statute establishing the Family Unity Program (“FUP”), Pub.L. No. 101-649, § 301, 101 Stat. 4978 (Nov. 29, 1990) (IMMACT), contains no text that necessarily implies that acceptance into the program constitutes a form of “admission” into the United States. The statute defines an “eligible immigrant” in terms of relationship to a “legalized alien,”1 not in terms of whether, when, or how “admission” takes place. Id. § 301(b). An alien is eligible only if he or she “entered” the United States before May 5, 1988, “resided” here on that date, and was not “lawfully admitted for permanent residence.” Id. § 301(a). By using the term “entered” without the qualifying phrase in the usual definition of “admitted” and by expressly excluding those who were “admitted” as LPRs, Congress omitted any suggestion that acceptance into the FUP is a form of “admission” into the United States. In substance, the statute simply allowed certain aliens to remain in the United States and to work under a temporary grant of “voluntary departure” while waiting for their potential adjustment to LPR status — that is, for potential “admission.”
Critically, too, § 301(c) provides that, “[ejxcept as otherwise specifically provided in this section, the definitions contained in the Immigration and Nationality Act shall apply in the administration of this section.” (Emphasis added.) In other words, Congress directed the BIA’s attention, and ours, to 8 U.S.C. § 1101(a)(13).
Additionally, the majority relegates § 301(f) to a footnote, majority op. at 8249 n. 7, but that section supports — even if it does not compel — the BIA’s interpretation. Section 301(f) states that “[njothing in this section shall be construed as authorizing an alien to apply for admission to, or to be admitted to, the United States in order to obtain benefits under this section.” As the majority properly notes, this section bars aliens who resided outside the United States on the date of IMMACT’s enactment from entering in order to apply for FUP benefits. This section conveys two additional things about congressional intent as well. The first is that Congress viewed the Family Unity Program as the receipt of “benefits,” rather than as a form of “admission” into the United States. The second is that Congress generally intended to grant those “benefits” without expanding the population of aliens “admitted to” the United States.
*1022Finally, it is worth noting that the Fifth Circuit has decided the precise question that we face. That court held that the BIA properly interpreted the statute. Diaz v. Ashcroft, 108 Fed.Appx. 972 (5th Cir.2004) (unpublished decision). Although the decision is unpublished, Fifth Circuit Rule 47.5.4 allows citation to an unpublished decision for its persuasive value. National uniformity is especially important in immigration matters. See Ferreira v. Ashcroft, 382 F.3d 1045, 1050 (9th Cir.2004) (noting that the need for national uniformity is “paramount” in the immigration context). We should not lightly dismiss the Fifth Circuit’s conclusion.
I do not suggest that the majority’s interpretation of this ambiguous statute is wholly untenable, and I am sympathetic to the majority’s desire for generosity toward aliens who reside, with their families, within our borders. But, in my view, the BIA’s interpretation more faithfully represents the law that Congress decided to enact. Therefore, I would deny the petition in its entirety.
. Unlike the term "eligible immigrant," the term "legalized alien” does make reference to the concept of "admission.” Section 301(b)(2) defines "legalized alien” to mean certain aliens "lawfully admitted for temporary or permanent residence.” The absence of a reference to “admission” in the definition of an "eligible immigrant” like Petitioner further suggests that "admission” is not a necessary consequence of acceptance into the Family Unity Program.