with whom
FEINBERG, Circuit Judge,joins, concurring:
I agree with the Court that the Chevron doctrine requires us to defer to the BIA’s *140interpretation so long as it is reasonable, even if that interpretation is not “the reading the court would have reached if the question initially had arisen in a judicial proceeding.” Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 n. 11, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Writing on a clean slate, I would have interpreted “lawfully resided continuously” to include the period between June 13, 1996, and August 13, 1997, when Rotimi resided in the United States while his applications for asylum and (later) adjustment of status were pending. Indeed, as I discuss below, in the narrow circumstances of this case — (1) Rotimi filed an application for lawful status while residing in the United States in a lawful status; (2) he never was subject to a deportation order at any time prior to the completion of the administrative proceedings that followed the submission of that application; and (3) the immigration authorities ultimately granted Rotimi lawful permanent resident status at the conclusion of those administrative proceedings — I believe the most sensible conclusion would be for Rotimi to be statutorily eligible for a § 212(h) waiver.
The BIA concluded that Rotimi’s residence in the United States during the relevant time period — June 1996 to August 1997 — was not “lawful” because it did not stem from the grant of a specific privilege to be here. Rather, according to the BIA, Rotimi’s continued residence in this country after his nonimmigrant visa expired in December 1995 merely reflected the government’s indulgence of his presence pending the adjudication of his applications for asylum and adjustment of status. The agency explained that the distinction between being an applicant for certain privileges and being granted those privileges was the “primary basis” for its decision and was derived from In re Lok, 18 I. & N. Dec. 101 (B.I.A.1981), and Tim Lok v. INS, 681 F.2d 107 (2d Cir.1982). However, I believe that the circumstances in Tim Lok differed in one significant respect from the circumstances of this case. In Tim Lok, although the alien entered the country lawfully, he overstayed his visa and was ordered deported. See Tim Lok, 681 F.2d at 110; see also Tim Lok v. INS, 548 F.2d 37, 38 (2d Cir.1977). Thereafter, the government did not enforce that order because Lok began to pursue avenues of relief that, if granted, would have permitted him to stay in the country. Lok’s continued presence in the United States therefore truly reflected the government’s grace because the government could have deported Lok at any time.
By contrast, Rotimi was never subject to a deportation order at any time between when he lawfully entered the country and when he became a lawful permanent resident. Thus, he continued to reside in the United States after his nonimmigrant visa expired because the immigration authorities could not deport him. See, e.g., 8 U.S.C. § 1252 (1996) (providing the process for deporting aliens); Letter from Dione M. Enea, Special Assistant U.S. Attorney, to Catherine O’Hagan Wolfe, Clerk of the Court (Mar. 31, 2009), at 2 (characterizing a final order of deportation as “a prerequisite to the removal of any alien”). In other words, Rotimi’s continued residence was not a reflection of the government’s mere tolerance of his presence but rather was attributable to the fact that the immigration agency was legally barred from deporting him. Consequently, although the Tim Lok decisions draw the distinction between being an applicant for a privilege or benefit and being granted that privilege or benefit, those decisions do not appear to support the application of that distinction in the circumstances of this case. Given that this distinction served as the “primary basis” for the BIA’s decision in this case, I find it troubling that the *141BIA did not adequately explain why this difference in circumstances was unimportant.
Furthermore, I do not believe that any of the other sources relied upon by the BIA adequately explain why, in the circumstances presented here, lawful residence follows only from the grant of a specific privilege to remain in the country. As an initial matter, the scant legislative history of § 212(h) offers no insight into congressional intent. Moreover, the dictionary definition of “lawful” does not support the BIA’s interpretation where, as here, the alien’s presence is in fact “authorized or in harmony with the law.”
Finally, although the agency relied on United States v. Ochoa-Colchado, 521 F.3d 1292 (10th Cir.2008), to support the proposition that the “lawfulness of an alien’s residence stems from the grant of a specific privilege to stay in this country, not [from] the mere fact that [the alien] is an applicant for such a privilege,” In re Rotimi, 24 I. & N. Dec. at 574, that case, unlike this one, involved an alien who was in the country illegally when he applied for the privilege to remain. See Ochoa-Colchado, 521 F.3d at 1293. Indeed, given that difference in circumstances, it appears that Ochoa-Colchado counsels against the interpretation of § 212(h) rendered by the BIA in this case.
In Ochoa-Colchado, the Tenth Circuit held that an alien was not legally or lawfully in the United States for purposes of 18 U.S.C. § 922(g)(5)(A) simply because he had a pending application for adjustment of status. See 521 F.3d at 1298. In explaining why, the court relied on United States v. Lucio, 428 F.3d 519, 525 (5th Cir.2005), a case in which the Fifth Circuit characterized “the status of an alien whose application is pending as a sort of ‘stasis.’ ” See Ochoa-Colchado, 521 F.3d at 1298 (noting that this was “as good a description as can be found in any case”). Under this reasoning, the outcome in Ochoa-Colchado logically followed from the circumstances presented — the illegal alien’s status would remain in “stasis,” ie., would remain unlawful, while his application was pending. By contrast, in this case, where Rotimi’s residence and status were lawful at the time his administrative proceedings commenced, the “stasis” approach would suggest that his residence and status would remain lawful pending the outcome of those proceedings. Although I express no view as to whether the status of an alien with a pending application remains in stasis, I believe that the absence of an explanation by the BIA as to why the “stasis” approach does not undermine its conclusion in this case certainly calls into question its reliance on Ochoa-Colchado.
Upon close analysis, it appears that what drove the BIA’s interpretation of § 212(h) in this case was its concern that, were lawful residence to exist merely because there was some legal impediment to an alien’s removal, then “the vast majority of aliens in the United States who are entitled to a removal hearing and the associated appeal rights could claim lawful residence based on a combination of physical presence and some barrier to removal.” In re Rotimi 24 I. & N. Dec. at 573. Although it is important to be sensitive to this concern, I am not sure that it is warranted in the narrow circumstances of this case, where the alien filed his asylum application while residing in the United States in a lawful status and ultimately was granted lawful permanent resident status at the conclusion of the administrative proceedings that followed. I would also note that to conclude that Rotimi is statutorily eligible for a § 212(h) waiver would not call into question the Attorney General’s ability to exercise his or her *142discretion to either grant or deny an application for a § 212(h) waiver on remand.
Moreover, the BIA’s disregard of these circumstances — where the alien filed his asylum application while residing in a lawful status in the United States and ultimately was granted lawful permanent resident status — could lead to an unreasonable interpretation of “lawfully resided continuously” because that interpretation could result in absurd and unjust consequences. See Ehrlich v. Am. Airlines, Inc., 360 F.3d 366, 386 (2d Cir.2004) (“ ‘A construction of a statute leading to unjust or absurd consequences should be avoided.’ ” (alteration omitted) (quoting Quinn v. Butz, 510 F.2d 743, 753 (D.C.Cir.1975))); see also Troll Co. v. Uneeda Doll Co., 483 F.3d 150, 160 (2d Cir.2007) (“[I]t is an elemental principle of statutory construction that an ambiguous statute must be construed to avoid absurd results.”).
In construing § 212(h), the BIA explained that an alien’s status at the time he or she files an application for a privilege or benefit is irrelevant to the analysis because the alien’s residence is not lawful if he or she is merely an applicant for a privilege or benefit. It follows from this, however, that where, as here, an alien files an application while in a lawful status, the alien’s eligibility for a § 212(h) waiver might turn on how quickly the immigration authorities adjudicate that application. For example, if the agency granted the application prior to the expiration of the alien’s lawful status, then the alien later might be eligible for a § 212(h) waiver. If, however, the agency granted the application after the alien’s lawful status had expired, then the alien would not be eligible for such a waiver. This is precisely the type of absurd and unjust consequence that should be avoided when interpreting statutes. Cf. Lockhart v. Napolitano, 561 F.3d 611, 620-21 (6th Cir.2009) (rejecting an interpretation of the “immediate relative” provision of the INA where “either the timing of the Secretary’s adjudication of the [immediate relative] petition or the timing of the citizen-spouse’s death would control the outcome of immediate relative petitions,” because such an interpretation would lead to an absurd and unjust result).
That said, Rotimi does not quite present such circumstances, because the application that the agency ultimately granted— his adjustment of status application — was filed after his nonimmigrant visa had expired.1 In light of this, I return to the core issue presented by this case — whether Chevron requires the court to defer to the BIA’s interpretation of “lawfully resided continuously.” Although I respectfully disagree with the agency, and I would interpret the statute differently were I called on to do so in the first instance, I cannot say that the BIA’s interpretation in the case before us is unreasonable. See Chevron, 467 U.S. at 844, 104 S.Ct. 2778. Consequently, I conclude that I must defer to the agency’s interpretation of § 212(h). In doing so, I urge the immigration agency to reconsider its interpretation of the statutory scheme. Congress, for its part, may wish to give further direction of the phrase “lawfully resided continuously in the United States” as used in § 212(h) of the Immi*143gration and Nationality Act, 8 U.S.C. § 1182(h).
. Although (he record does not permit me to confirm this, I suspect that the government played a significant role in Rotimi's decision to withdraw his asylum application in favor of pursuing adjustment of status. I draw this conclusion based on the fact that (1) Rotimi abandoned his asylum claim in March 1997 after his asylum application had been pending for approximately eighteen months, (2) the agency sought to terminate his deportation proceedings within approximately forty days after he withdrew his asylum application, and (3) the agency granted Rotimi's adjustment application less than four months after that.