27 I. & N. Dec. 194
BIA2018Background
- Respondent Castillo Angulo, a Mexican national, claims she was "waved through" a port of entry in 1998 and seeks cancellation of removal under INA § 240A(a)(2) based on 7 years of continuous residence following that admission.
- She adjusted to lawful permanent resident status in April 2003; DHS later charged her with removability and the IJ pretermitted her § 240A(a) application for failing to show 7 years' continuous residence after an "admission in any status."
- The IJ held Matter of Quilantan (BIA) does not govern § 240A(a)(2) and thus a wave-through entry is not an "admission in any status" for cancellation purposes; the IJ did not receive testimony on the claimed 1998 wave-through.
- The Board reviewed the statutory language, legislative history, and circuit authority and found § 240A(a)(2) ambiguous on whether a wave-through admission qualifies as an admission "in any status."
- The Board concluded Quilantan governs the concept of "admission" but interpreted "in any status" to require that the alien possessed some form of lawful immigration status at the time of admission—except in the Fifth and Ninth Circuits, where Tula-Rubio and Saldivar hold otherwise.
- Because Castillo Angulo's case arises in the Ninth Circuit (which holds a wave-through can satisfy "admitted in any status"), the Board remanded for factfinding on whether she was waved through and whether she accrued continuous residence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a "wave through" constitutes an "admission" for § 240A(a)(2) | A wave-through is an admission (relies on Matter of Quilantan). | IJ/DHS initially disputed Quilantan's application to § 240A(a)(2). | Board: Quilantan governs "admission"; a wave-through can be an "admission." |
| Whether "admitted in any status" includes unlawful status | Respondent: "any status" is broad and includes admissions even if not in identifiable lawful status (relies on Tula-Rubio and Saldivar). | DHS: "in any status" requires that the admission be in some lawful immigration status. | Board: Phrase is ambiguous; best reading (outside 5th/9th Circuits) requires lawful status at admission; but bound to follow Tula-Rubio and Saldivar in those circuits. |
| Whether statutory text and history support including unlawful admissions | Respondent: omission of "lawfully" does not show Congress intended to permit unlawful admissions. | DHS: legislative history and prior practice show Congress intended "in any status" to mean some lawful status. | Board: Legislative history and statutory structure favor requiring lawful status at time of admission. |
| Procedural disposition for this respondent | Respondent: preserve right to present testimony and evidence about wave-through and continuous residence. | DHS: argues respondent waived testimony at hearing. | Board: Remanded to IJ for testimony and evidence because Ninth Circuit precedent governs; respondent preserved issues. |
Key Cases Cited
- Chevron v. Natural Resources Defense Council, 467 U.S. 837 (agency deference framework)
- Negusie v. Holder, 555 U.S. 511 (ambiguity requires careful inquiry into congressional intent)
- Tula-Rubio v. Lynch, 787 F.3d 288 (5th Cir. holding that wave-through can satisfy "admitted in any status")
- Saldivar v. Sessions, 877 F.3d 812 (9th Cir. holding that wave-through can satisfy "admitted in any status")