BRIEF OF THE AMERICAN IMMIGRATION LAW FOUNDATION AND THE AMERICAN IMMIGRATION LAWYERS ASSOCIATION AS AMICI CURIAE IN SUPPORT OF THE RESPONDENT

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1 UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE OF IMMIGRATION REVIEW BOARD OF IMMIGRATION APPEALS ) In Re AGUILAR-CERDA, Juan Carlos ) Case No.: A ) Respondent. ) ) REMOVAL PROCEEDINGS ) ) BRIEF OF THE AMERICAN IMMIGRATION LAW FOUNDATION AND THE AMERICAN IMMIGRATION LAWYERS ASSOCIATION AS AMICI CURIAE IN SUPPORT OF THE RESPONDENT Mary A. Kenney American Immigration Law Foundation 1331 G. St. NW Washington, DC (202) (202) (fax) Ilyce Shugall Van Der Hout, Brigagliano, & Nightingale, LLP. 180 Sutter Street, Fifth Floor San Francisco, CA Attorneys for Amici Curiae

2 TABLE OF CONTENTS I. INTRODUCTION AND STATEMENT OF AMICI... 1 II. ARGUMENT... 4 A. THE TERM ADMITTED AS USED IN INA 245(a) AND 212(a)(9)(C) MEANS AN ENTRY FOLLOWING AN INSPECTION AND AUTHORIZATION; ONLY THIS MEANING WILL AVOID THE ABSURD RESULTS WHICH WOULD FLOW FROM A CONSTRUCTION THAT CONFLICTS WITH CONGRESS S USE OF THE SAME TERM IN INA 237(a) INA 237(a)(1)(A) and (H) make clear that non-citizens who are inspected and allowed to enter are admitted even when inadmissible at the time of entry The term admitted as used in INA 212(a)(9)(C) and 245(a) must be read consistently with its use in INA 237(a)(1) In Accord with the Board s Own Interpretation, the Department of Homeland Security and the Department of State Have Previously Taken the Position that INA 212(a)(9)(C) Only Applies to Entries Without Inspection and DHS Cannot Now Take a Contrary Position B. THE DEFINITION OF ADMITTED IN INA 101(a)(13) CAN BE RECONCILED WITH CONGRESS S INTENDED MEANING OF THESE TERMS AS USED IN INA 237(a), 212(a)(9)(C) AND 245(a) The term lawful entry in INA 101(a)(13) was intended to mean a procedurally lawful entry; that is, one achieved following inspection and authorization The cases cited by the Board below do not support an interpretation of the phrase lawful entry as requiring a substantively lawful entry The statutory definition of admitted under INA 101(a)(13)(A) is inapposite in interpreting the term admitted under INA 212(a)(9)(C), 237(a) and 245(a) a. Defining the phrase inspected and admitted in INA 245(a) by reference to the definition of admission in INA i

3 101(a)(13)(A) renders the term inspected redundant and superfluous b. This Board and federal courts have concluded that the definition of admitted does not apply to every use of the term throughout the INA (i) The board has assigned varying meanings to the terms admitted and admission in interpreting other provisions of the act post-iirira (ii) The appellate courts have assigned varying meanings to the terms admitted and admission in other provisions of the act post-iirira III. Conclusion ii

4 TABLE OF AUTHORITIES Cases Abdelqadar v. Gonzales, 413 F.3d 668 (7th Cir. 2005)... 25, 26 Akhtar v. Gonzales, 450 F.3d 587 (5th Cir. 2006) Alim v. Gonzales, 446 F.3d 1239 (11th Cir. 2006)... 8 Arden v. Ashcroft, 396 F.3d 966 (8th Cir. 2005)... 8 Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U.S. 687 (1995) Blankenship & Associates, Inc. v. NLRB, 999 F.2d 248 (7th Cir.1993) Bolvito v. Mukasey, 527 F.3d 428 (5th Cir. 2008) Borrego v. Mukasey, 539 F.3d 689 (7th Cir. 2008)... 6, 7 Busboom Grain Co. v. ICC, 856 F.2d 790 (7th Cir.1988)... 11, 16 Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 81 L. Ed. 2d 694, 104 S. Ct (1984).. 2 Continental Web Press, Inc. v. NLRB, 742 F.2d 1087 (7th Cir.1984) Dashto v. INS, 59 F.3d 697 (7th Cir.1995)... 11, 16 Duncan v. Walker, 533 U.S. 167 (2001) Emokah v. Mukasey, 523 F.3d 110 (2d Cir. 2008)... 15, 17 Goodyear Atomic Corp. v. Miller, 486 U.S. 174 (1988) Matter of Guang Li Fu, 23 I&N Dec. 985 (BIA 2006)... 7 Guillen-Garcia v. INS, 60 F.3d 340 (7th Cir.1995)... 11, 16 Hoxha v. Gonzales, 446 F.3d 210 (1st Cir. 2006)... 8 INS v. Cardoza-Fonseca, 480 U.S. 421, 94 L. Ed. 2d 434, 107 S. Ct (1987)... 2 Kalubi v. Ashcroft, 364 F.3d 1134 (9th Cir. 2004) iii

5 Lemus-Loza v. Holder, No , F.3d, 2009 U.S. App. LEXIS (7th Cir. Aug. 13, 2009) Matter of Areguillin, 17 I&N Dec. 308 (BIA 1980)... passim Matter of Ayala-Arevalo, 22 I&N Dec. 398 (BIA 1998) Matter of Briones, 24 I&N Dec. 355 (BIA 2007) Matter of Crammond, 23 I&N Dec. 9 (BIA 2001)... 2 Matter of Federiso, 24 I&N Dec. 661 (BIA 2008)... 7 Matter of Koloamatangi, 23 I&N Dec. 548 (BIA 2003)... 14, 17 Matter of Lemus-Losa, 241 I&N Dec. 373 (BIA 2007) Matter of Longstaff, 716 F.2d 1439 (5th Cir. 1983) Matter of M S, 22 I&N Dec. 349 (BIA 1998) Matter of Nwozuzu, 24 I&N Dec. 609 (BIA 2008)... 2, 16 Matter of Rosas-Ramirez, 22 I&N Dec. 616 (BIA 1999)... passim Matter of Torres-Garcia, 23 I&N Dec. 866 (BIA 2006) Matter of Wong, 14 I&N Dec. 12 (BIA 1972) Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353 (1982) Monet v. INS, 791 F.2d 752 (9th Cir. 1986) Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, 103 S.Ct. 2856, , 77 L.Ed.2d 443 (1983) Ocampo Duran v. Ashcroft, 254 F.3d 1133 (9th Cir. 2001)... 24, 26 Salameda v. INS, 70 F.3d 447 (7th Cir. 1995)... 11, 16 San Pedro v. Ashcroft, 395 F.3d 1156 (9th Cir. 2005)... 8 Shivaraman v. Ashcroft, 360 F.3d 1142 (9th Cir. 2004)... 24, 26 iv

6 Shtaro v. Gonzales, 435 F.3d 711 (7th Cir. 2006)... 8 Toro-Romero v. Ashcroft, 382 F.3d 930 (9th Cir. 2004)... 5 United States v. Menasche, 348 U.S. 528 (1955) Wong v. INS, 474 F.2d 739 (9th Cir. 197) Statutes Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub. L. No , 110 Stat (Sept. 30, 1996)... passim INA 101(a)(13)... passim INA 101(a)(13)(A)... passim INA 101(a)(20) INA INA 212(a)(6)(A)... 10, 12 INA 212(a)(6)(A)(i) INA 212(a)(6)(C)... 7 INA 212(a)(6)(C)(i)... 8 INA 212(a)(9)... 12, 18 INA 212(a)(9)(B)(i) INA 212(a)(9)(C)... passim INA 212(a)(9)(C)(i)(I)... 11, 12 INA 212(a)(9)(C)(i)(II)... 1, 10, 11 INA 212(d)(3)(A)(ii)... 6 INA 212(h) INA 214(n)(2)(a) v

7 INA INA 237(a)... passim INA 237(a)(1) (INA) 237(a)(1)(A)...passim INA 237(a)(1)(H)... passim INA 237(a)(2)(A)(i)... 24, 25 INA 237(a)(2)(A)(ii) INA 237(a)(2)(A)(iii)... 22, 23, 24, 25 INA INA 240A(a)(1) INA 241 (1995)...5 INA INA 245(a)... passim INA 245A(a) INA INA Other Authorities H.R. Rep. No , at (1996) Miscellaneous 9 FAM N vi

8 I. INTRODUCTION AND STATEMENT OF AMICI Amici American Immigration Law Foundation (AILF) and American Immigration Lawyers Association (AILA) submit this brief in support of the Respondent. The question which Amici will address is whether the Respondent, whom the government conceded and the Board of Immigration Appeals (BIA) below found was in and admitted to the United States and deportable under Immigration and Nationality Act (INA) 237(a)(1)(A), can be found to be inadmissible under INA 212(a)(9)(C)(i)(II) and ineligible for adjustment of status under INA 245(a) as having entered without being admitted. Amici submit that such a result is irreconcilable with Congress s intent and produces an absurd result. The term admitted as used in INA 212(a)(9)(C), 237(a)(1)(A) and 245(a) must be given the same meaning. The immigration judge and the BIA previously (and correctly) found that the respondent was admitted within the meaning of 237(a)(1)(A) when an immigration officer at the port of entry inspected him and allowed his entry, regardless of whether he was, in fact, inadmissible at that time of entry. 1 As such, he cannot be found to not have been admitted during this same entry for purposes of either 212(a)(9)(C) or 245(a). To resolve this issue, the Board must construe several interrelated provisions of the INA, including 101(a)(13); 212(a)(9)(C); 237(a)(1)(A); 237(a)(1)(H); and 245(a). The first step of statutory construction is to determine Congress s intent. If the intent of Congress is clear, that is the end of the matter; for. the agency [] must give effect to 1 Amici take no position on whether the facts support a finding that Respondent was deportable for fraud or misrepresentation at entry but rather limit this Brief to the meaning of admitted within the relevant statutory provisions. 1

9 th[is] unambiguously expressed intent. Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, , 81 L. Ed. 2d 694, 104 S. Ct (1984) (footnotes omitted). In determining such intent, the BIA must "employ[] traditional tools of statutory construction." INS v. Cardoza-Fonseca, 480 U.S. 421, 448, 94 L. Ed. 2d 434, 107 S. Ct (1987) (quoting Chevron, 467 U.S. at 843 n.9). These tools include analysis of the language chosen by Congress; the design of the statute as a whole, including its object and policy; the use of the relevant terms in the context of the INA as a whole; and the structure of specific provisions of the INA. See Matter of Nwozuzu, 24 I&N Dec. 609, 612 (BIA 2008); Matter of Rosas-Ramirez, 22 I&N Dec. 616, 618 (BIA 1999); Matter of Crammond, 23 I&N Dec. 9, 10 (BIA 2001) ( [T]he words of a statute must be read in their context and with a view to their place in the overall statutory scheme ). Application of these rules of statutory construction demonstrates Congress s intent that a non-citizen who is inspected at a port of entry and allowed to enter the United States has been admitted as that term is used in 212(a)(9)(C)), 245(a), and 237(a)(1)(A), regardless of whether the individual was actually inadmissible at the time of the entry for fraud, misrepresentation or any other reason. Accord Matter of Areguillin, 17 I&N Dec. 308, 310 n.6 (BIA 1980). A contrary reading of the phrase admitted in 245(a) or 212(a)(9)(C) would conflict with the required meaning of this term in INA 237(a)(1)(A) and (H) and would lead to absurd results. Moreover, there are two alternative ways in which this reading of admitted in these three sections can be reconciled with the definition of this term in INA 101(a)(13). First, if the definition were interpreted to require only a procedurally lawful entry, there would be no conflict between the provisions. This is the better of the two 2

10 alternatives, and also the interpretation advocated by the government in other cases before this Board. Alternatively, if 101(a)(13) is found to require a substantively lawful entry, then the Board could find that the definition does not apply to the word admitted as used in 212(a)(9)(C), 237(a) and 245(a), just as the Board has done in other circumstances. AILF is a non-profit organization established to increase public understanding of immigration law and policy and to advance fundamental fairness, due process, and constitutional and human rights in immigration law and administration. AILF has a direct interest in ensuring that noncitizens have the fullest opportunity to have their adjustment applications made and decided in accordance with the law. AILA is a national association with more than 10,000 members throughout the United States, including lawyers and law school professors who practice and teach in the field of immigration and nationality law. AILA seeks to advance the administration of law pertaining to immigration, nationality and naturalization; to cultivate the jurisprudence of the immigration laws; and to facilitate the administration of justice and elevate the standard of integrity, honor and courtesy of those appearing in a representative capacity in immigration and naturalization matters. AILA s members practice regularly before the Department of Homeland Security ( DHS ) and before the Executive Office for Immigration Review (immigration courts), as well as before the United States District Courts, Courts of Appeal, and the United States Supreme Court. 3

11 II. ARGUMENT A. THE TERM ADMITTED AS USED IN INA 245(a) AND 212(a)(9)(C) MEANS AN ENTRY FOLLOWING AN INSPECTION AND AUTHORIZATION; ONLY THIS MEANING WILL AVOID THE ABSURD RESULTS WHICH WOULD FLOW FROM A CONSTRUCTION THAT CONFLICTS WITH CONGRESS S USE OF THE SAME TERM IN INA 237(a). Congress s intent with respect to the meaning of the term admitted in 212(a)(9)(C) and 245(a) can only be discerned by construing the meaning of the same term in INA 237(a)(1)(A), the deportation ground applicable to non-citizens who are inspected and authorized to enter although they actually are inadmissible at the time of entry, as well as the related waiver found at INA 237(a)(1)(H). The meaning of the terms admitted and admission are plain in 237(a)(1)(A) and (H). In order to avoid an absurd result, their meaning must dictate the meaning of admitted in 212(a)(9)(C) and 245(a). 1. INA 237(a)(1)(A) and (H) make clear that non-citizens who are inspected and allowed to enter are admitted even when inadmissible at the time of entry. Immigration law has long distinguished between those in the United States and those seeking admission. Prior to 1996, the distinction hinged on the concept of entry : those who had made an entry into the U.S. were placed in deportation proceedings, while those who had not entered were placed in exclusion proceedings. In the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub. L. No , 110 Stat (Sept. 30, 1996), Congress eliminated the definition of the term entry and instead adopted a definition of the terms admission and admitted. INA 101(a)(13). Congress also eliminated separate deportation and exclusion proceedings and replaced them with a general removal proceeding. INA

12 Despite this latter change, Congress maintained in part the historical distinction between those who are already within the United States and those seeking admission. Removal proceedings under the INA are divided into two categories: Those proceedings seeking to remove inadmissible aliens, and those seeking to remove aliens who are already in and admitted to the United States, but who are nonetheless deportable. Toro- Romero v. Ashcroft, 382 F.3d 930, 936 (9th Cir. 2004) (distinguishing between charges of inadmissibility under INA 212 and deportability under INA 237); see also Matter of Rosas-Ramirez, 22 I&N Dec. 616, (BIA 1999) (noting that the definition of the term "removable" added by the IIRIRA (INA 240(e)(2)) assigns deportability grounds to aliens who are "admitted to the United States"). Prior to IIRIRA, the deportability grounds applied to [a]ny alien in the United States. See former INA 241 (1995). In IIRIRA, Congress amended the provision listing deportability grounds such that it now applies to [a]ny alien in and admitted to the United States. INA 237(a) (emphasis added) 2 ; see also IIRIRA, 301(d)(1). This introductory language in 237(a) applies to all the grounds of deportation that follow, including 237(a)(1)(A). Congress thus expressed its clear intent that all non-citizens who were subject to deportation grounds were to be considered admitted. Significantly, in IIRIRA, Congress did not change the deportability ground found at INA 237(a)(1)(A). This subsection explicitly renders deportable [a]ny alien who at the time of entry was within one or more of the classes of aliens inadmissible by the 2 The preliminary language in INA 237(a) reads in full: Classes of deportable aliens. Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens. 5

13 law existing at such time. It applies to numerous grounds of inadmissibility. Consequently, to fall within 237(a)(1)(A), a non-citizen must be inadmissible at entry. Despite this inadmissibility, an entry under 237(a)(1)(A), when read in concert with the amendment to the introductory language of 237(a), must be treated as an admission. As a result, the only viable interpretation of 237(a)(1)(A) is that Congress intended that a non-citizen who made a procedurally lawful entry (that is, one that followed an inspection and authorization to enter by an immigration officer), but who substantively was not entitled to enter (that is, was inadmissible at the time of entry) is to be considered admitted. On facts very similar to the present case, the Seventh Circuit specifically based its holding on the fact that the petitioner who entered on a B-2 visa but who was inadmissible at the time of entry had been admitted to the United States. Borrego v. Mukasey, 539 F.3d 689 (7th Cir. 2008). As here, the petitioner in Borrego was allowed to enter on a B-2 visa because the officer did not know that she was barred from admission because of a prior removal and thus did not know about Borrego s inadmissible status, Id., 539 F.3d at Also, as here, the government charged Borrego as being deportable under 237(a)(1)(A) as having been inadmissible at the time of admission (although on a different ground of inadmissibility), and the immigration judge, affirmed by the BIA, ordered her removed on this basis. The court, faced with the issue of whether Borrego was eligible to receive a retroactive waiver under INA 212(d)(3)(A)(ii), held she was not because, inter alia, she was admitted and the waiver 3 A factual distinction between the present case and Borrego is that Borrego did not admit to her prior removal when directly asked the question, whereas, here, this question was never asked of the Respondent. See Borrego, 539 F.3d at 690. This factual difference is not material to the legal point that Amici is addressing. 6

14 was available only to applicants for admission. In short, there was no question in Borrego that the entry factually similar to the one here constituted an admission. This result is consistent with the decisions of this Board. Since passage of IIRIRA, 237(a)(1)(A) has consistently been applied by immigration judges and the Board in accord with its plain meaning; that is, to respondents who gained admission even though they were actually inadmissible at the time of entry. For example, in Matter of Federiso, 24 I&N Dec. 661 (BIA 2008), the respondent was admitted as a lawful permanent resident on the basis of a first-preference classification as the unmarried son of a U.S. citizen. In fact, however, he was married at the time of his admission. In subsequent removal proceedings, he was found deportable under INA 237(a)(1)(A) because he was inadmissible at the time of entry for, inter alia, fraud or misrepresentation under INA 212(a)(6)(C). Matter of Federiso, 24 I&N Dec. at As a deportable alien, he was necessarily considered admitted. Similarly, in Matter of Guang Li Fu, 23 I&N Dec. 985 (BIA 2006), the respondent s lawful permanent resident father filed a visa petition on his behalf. The petition was approved but the visa was not issued until three years later. By the time respondent was admitted to the U.S. on the visa, his father was deceased. In subsequent removal proceedings, the immigration judge found the respondent deportable under INA 237(a)(1)(A) on the basis that he was inadmissible at the time of his admission. This Board sustained this removal order. Matter of Guang Li Fu, 23 I&N Dec. at 986. In addition to Borrego, other federal court decisions also provide examples of cases in which the Board affirmed removal orders against non-citizens who were deportable for being inadmissible at the time of admission. In each case, it was accepted 7

15 that the non-citizen was admitted notwithstanding the inadmissibility at entry. For example, in Hoxha v. Gonzales, 446 F.3d 210, 211, 214 (1st Cir. 2006), 237(a)(1)(A) was applied where the non-citizen gained admission to the United States with false passports. Similarly, in Alim v. Gonzales, 446 F.3d 1239, (11th Cir. 2006), a Syrian citizen was found deportable under 237(a)(1)(A) where he gained admission to the U.S. using someone else s Bolivian passport and non-immigrant visa. See also Shtaro v. Gonzales, 435 F.3d 711 (7th Cir. 2006) (non-citizen deportable under 237(a)(1)(A) as inadmissible at the time of admission where admission based upon fraudulent document); San Pedro v. Ashcroft, 395 F.3d 1156, 1157 (9th Cir. 2005) ( 237(a)(1)(A) applied where non-citizen deliberately misrepresented his marital status to gain admission on a preference visa); Arden v. Ashcroft, 396 F.3d 966, 967 (8th Cir. 2005) (native of Somalia ordered removed under 237(a)(1)(A) after gaining admission to the U.S. using fraudulent documents). The waiver at INA 237(a)(1)(H) further demonstrates Congress s intent that non-citizens who are inspected and allowed to enter based upon fraud or misrepresentation have been admitted. Section 237(a)(1)(H) is a limited waiver available to some non-citizens who are found deportable under INA 237(a)(1)(A). It specifically is limited to non-citizens who are inadmissible at the time of admission as aliens described in INA 212(a)(6)(C)(i), i.e., aliens who commit fraud or misrepresentation to procure admission to the U.S. INA 237(a)(1)(H) (emphasis added). Thus, because the 237(a)(1)(H) waiver is available to an individual who is inadmissible for having been inspected and allowed to enter under fraudulent means, such a fraudulent entry constitutes an admission. 8

16 As a result of the plain language of 237(a)(1)(A), a non-citizen who is inspected and allowed to enter, but who is later determined to have been inadmissible at the time of entry, must be charged under the deportation ground of 237(a)(1)(A). Congress deliberately structured the Act so that this deportation ground references and incorporates inadmissibility grounds. The statutory structure does not permit a non-citizen in this situation to be treated as if not admitted and charged directly under the inadmissibility grounds. Such a charge would contravene Congress s explicit choice to consider these non-citizens as admitted and removable pursuant to 237(a)(1)(A). Respondent Aguilar-Cerda was correctly charged as being deportable under 237(a)(1)(A), since he was inspected and allowed to enter (and thus admitted) based upon the use of a visitor visa. 2. The term admitted as used in INA 212(a)(9)(C) and 245(a) must be read consistently with its use in INA 237(a)(1). Admitted as used in INA 237(a), 212(a)(9)(C) and 245(a) must be read consistently so as not to reach an absurd result. Section 212(a)(9)(C) only applies to noncitizens who enter without being admitted. To interpret the term admitted in this section as requiring something more than an inspection and authorization to enter would result in the untenable situation of a respondent being found admitted for purposes of 237(a)(1)(A), the removal ground that renders a non-citizen deportable for having been inadmissible at entry, but not admitted for purposes of the underlying inadmissibility ground upon which 237(a)(1)(A) depends. Similarly, to apply a different meaning to the term as used in INA 245 would result in a non-citizen being found to have been 9

17 admitted for purposes of removal, but not admitted for purposes of relief from removal in the form of adjustment of status. A respondent cannot be found to be both admitted and not admitted based upon the same facts. Accord Kalubi v. Ashcroft, 364 F.3d 1134, 1138 (9th Cir. 2004) ( x may not become not-x just because the process has progressed [to a new stage] ). This would be the type of absurd result not contemplated by Congress. See Matter of M S, 22 I&N Dec. 349, 356 (BIA 1998) ( The rules of statutory construction require that the whole statute be given effect to avoid absurd results ). 3. In Accord with the Board s Own Interpretation, the Department of Homeland Security and the Department of State Have Previously Taken the Position that INA 212(a)(9)(C) Only Applies to Entries Without Inspection and DHS Cannot Now Take a Contrary Position INA 212(a)(9)(C) applies to a non-citizen who enters or attempts to enter the United States without being admitted. Through the phrase without being admitted, Congress made clear that this inadmissibility ground only applies to those who have entered the U.S. by evading inspection. In fact, this phrase is the same as that found in INA 212(a)(6)(A), the inadmissibility ground for those present in the U.S. following an entry without inspection. For this reason, INA 212(a)(9)(C)(i)(II) does not apply to Respondent who was inspected and allowed to enter. The decisions of the Board are in accord. The Board has characterized 212(a)(9)(C) as applying to those who mak[e] or attempt[] to make an illegal reentry into the United States following a prior period of more than 1 year of unlawful presence. Matter of Lemus-Losa, 241 I&N Dec. 373, 378 (BIA 2007) (emphasis added) (reversed on other grounds, Lemus-Loza v. Holder, No , F.3d, 2009 U.S. App. LEXIS (7th Cir. Aug. 13, 2009)); see also Matter of Torres-Garcia, 23 I&N Dec. 10

18 866 (BIA 2006) (applying 212(a)(9)(C)(i)(II) to non-citizen who entered without inspection even though he had been granted permission to reenter); Matter of Briones, 24 I&N Dec. 355 (BIA 2007) (applying 212(a)(9)(C)(i)(I) to non-citizen who entered without inspection). DHS also previously interpreted the phrase without being admitted as set forth in INA 212(a)(9)(C) as only including those who entered the country without inspection. The government cannot now take a contrary position. An agency may not abandon an interpretation without an explanation. Salameda v. INS, 70 F.3d 447, 450 (7th Cir. 1995) (citing Guillen-Garcia v. INS, 60 F.3d 340, 342 n. 4 (7th Cir.1995); Dashto v. INS, 59 F.3d 697, 703 (7th Cir.1995); Busboom Grain Co. v. ICC, 856 F.2d 790, 796 (7th Cir.1988)). In Salameda, the Seventh Circuit asserted that an administrative agency does not possess the same freedom as courts to change its interpretation of a statute without acknowledging and justifying the change. Id. (citing Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, 41-42, 103 S.Ct. 2856, , 77 L.Ed.2d 443 (1983); Blankenship & Associates, Inc. v. NLRB, 999 F.2d 248, 251 (7th Cir.1993); Continental Web Press, Inc. v. NLRB, 742 F.2d 1087, (7th Cir.1984). DHS, as well as the legacy Immigration and Naturalization Service (INS) previously interpreted the phase admitted in the context of Section 212(a)(9)(C). Most recently, USCIS published a memorandum, entitled Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act, Neufeld, Scialiabba, Chang, May 6, 2009 (available on the USCIS website at 11

19 In that Memorandum, USCIS narrowly interprets section 212(a)(9)(C), clarifying that an individual need not actually be admitted to the United States to fall outside the scope of the ground of inadmissibility at INA 212(a)(9)(C)(i). Id. at For example, an individual who is paroled into the United States is exempt from section 212(a)(9)(C)(i). The memo specifically indicates that the DHS has taken the position that for purposes of 212(a)(9)(C)(i)(I) inadmissibility, an alien s parole is not deemed to be an entry or attempted reentry without being admitted, even though parole is not considered admission. Id. at 16 (emphasis added). This interpretation supports a finding that admission for the purposes of 212(a)(9)(C) occurs when an individual presents him or herself for inspection and is allowed to enter the country, as set forth in Matter of Areguillin, 17 I. & N. Dec. at Similarly, the predecessor memorandum interpreting INA 212(a)(9)(C) stated, Pursuant to section 212(a)(9)(C) of the Act, aliens who were unlawfully present in the United States for an aggregate period of more than one year and subsequently departed or who were previously ordered removed (and actually left the United States) and have subsequently either entered the United States without inspection or sought to enter the United States without inspection are permanently inadmissible. This ground of inadmissibility applies only to aliens who have attempted to re-enter or actually have reentered the United States without being inspected and admitted or paroled. March 31, 1997 INS Memo on Grounds of Inadmissibility, Unlawful Presence (96Act.026); Subject: Implementation of section 212(a)(6)(A) and 212(a)(9) grounds of inadmissibility; Date: March 31, 1997 (emphasis added) (Available on AILA website at 12

20 Although this memorandum was rescinded by the May 6, 2009 memorandum cited above, it illustrates the consistent position that USCIS and the legacy INS have taken on the implementation of INA 212(a)(9)(C). Like the USCIS in the most recent memorandum, the legacy INS interpreted the term admission consistent with the Board s interpretation in Matter of Areguillin, supra. Furthermore, the Department of State (DOS) has taken a position consistent with the USCIS and legacy INS with respect to the interpretation of the statute. See 9 FAM N1 (located on the DOS website at In a response to a visa advisory opinion, a representative from the DOS Visa Office wrote the following: Analysis: INA 212(a)(9)(C) applies only to aliens who, having previously been unlawfully present for more than a year (in the aggregate) or having been previously removed, enter or try to enter the United States illegally. 9 FAM N1. Since the effective date of IIRIRA, April 1, 1997, INS/DHS has consistently defined enter or try to enter the United States illegally for purposes of INA 212(a)(9)(C) as entering or attempting to enter without inspection. See the INS Memorandum cited in applicant s attorney s . Thus, the mere fact that an alien knows he/she is inadmissible does not render him/her an attempted illegal entrant under INA 212(a)(9)(C). This office has followed that guidance and has applied INA 212(a)(9)(C) only to aliens who did not present themselves for inspection. Because applicant presented herself for inspection on December 23, 2000, she is not subject to INA 212(a)(9)(C). See Exhibit A (attached hereto). Thus, for the last twelve years, the government has interpreted INA 212(a)(9)(C) to only apply to individuals who entered without inspection. At no point has the DHS indicated a reason for changing its interpretation of the statute. Moreover, as set forth in subsections A.1 and A.2 above, such an interpretation is reasonable when utilizing standard tools of statutory construction and in 13

21 accord with the Board s own interpretation. Accordingly, the Board should find that the agency s prior interpretation is correct. B. THE DEFINITION OF ADMITTED IN INA 101(a)(13) CAN BE RECONCILED WITH CONGRESS S INTENDED MEANING OF THESE TERMS AS USED IN INA 237(a), 212(a)(9)(C) AND 245(a). In IIRIRA, Congress defined the term admitted to mean the lawful entry of the alien into the United States after inspection and authorization by an immigration officer. INA 101(a)(13). In the decision below, the BIA cited 101(a)(13) in support of its conclusion that Respondent had not been admitted for purposes of 212(a)(9)(C), indicating that an admission under 101(a)(13)(A) had to be in compliance with substantive as well as procedural requirements. In re Aguilar-Cerda, at 3, n. 1 (BIA Aug. 25, 2008) (citing Matter of Koloamatangi, 23 I&N Dec. 548 (BIA 2003)). This interpretation of 101(a)(13) conflicts with Congress s intended meaning for the term admitted as used in INA 237(a)(1)(A) and 245(a). A non-citizen s entry cannot be substantively lawful if he or she was, in fact, inadmissible at the time of entry, the very premise behind 237(a)(1)(A). There are two ways to reconcile the definition of admitted in INA 101(a)(13) with Congress s use of this term in INA 237(a)(1)(A) and (H). First, the simplest and most reasonable way would be to interpret the term lawful entry as used in 101(a)(13) as referring to an entry that is procedurally lawful, even if not substantively lawful. Second, if lawful entry is interpreted to mean substantively lawful, then to avoid a conflict between the provisions this Board should find that the definition of admitted in 101(a)(13) does not apply to the term s use in 237(a)(1)(A) and 245(a). 14

22 1. The term lawful entry in INA 101(a)(13) was intended to mean a procedurally lawful entry; that is, one achieved following inspection and authorization. If lawful entry in INA 101(a)(13) is interpreted to mean a procedurally lawful entry, the definition of admitted would be consistent with Congress s use of this term in 237(a)(1)(A), (H), 212(a)(9)(C) and 245(a). Admitted as defined in 101(a)(13) would include entries that are not substantively lawful because the non-citizen actually was inadmissible at the time of entry, just as the term admitted in 237(a), 212(a)(9)(C) and 245(a) includes entries where the non-citizen is inadmissible at the time. At least one court has interpreted 101(a)(13) precisely in this way. In Emokah v. Mukasey, 523 F.3d 110, 118 (2d Cir. 2008), the Second Circuit considered whether the petitioner was present in the United States without being admitted in violation of INA 212(a)(6)(A)(i), because she had entered the U.S. on a visa obtained through fraud or misrepresentation. Relying upon INA 101(a)(13)(A), the court concluded that the petitioner had in fact been admitted when she entered on the fraudulent visa because she had entered after inspection and authorization. See id. The court reasoned that [t]he manner in which she procured her admission rendered her inadmissible at the time of entry... but does not change the fact that she was, indeed, admitted. See id. (emphasis added). Thus, the Second Circuit has interpreted the 101(a)(13)(A) definition of admitted as including aliens like Respondent who entered the U.S. after inspection and authorization, even though inadmissible at the time of entry. See also Bolvito v. Mukasey, 527 F.3d 428, 431 (5th Cir. 2008) (finding an admitted alien is one who is inspected and allowed to enter); accord Borrago, 539 F.3d at 693 (finding that a non- 15

23 citizen who was inspected and allowed to enter was admitted notwithstanding her inadmissibility due to misrepresentations). DHS has agreed with this interpretation and offers statutory support for it. See Exhibit B (DHS brief to BIA in In re Orozco, No. A ) (attached hereto). 4 In this brief, DHS addressed the question of whether a non-citizen who was allowed to enter the U.S. following an inspection had been admitted for purposes of INA 237(a)(1)(A) and 245(a) when he used proof of lawful permanent residency belonging to someone else. DHS argued that INA 101(a)(13)(A) should be interpreted consistently with Matter of Areguillin. Id. 5. In particular, DHS advocated for construing the term lawful in 101(a)(13)(A) to denote procedural regularity rather than compliance with substantive legal requirements. Id. at 7. DHS also explained in detail how an interpretation of lawful entry as requiring a substantively lawful entry would render superfluous Congress s use of the word lawfully in various provisions throughout the INA, including 101(a)(20), 214(n)(2)(a), 240A(a)(1), 245A(a), 248, and 249. Id. at 6. Such a result violates the basic statutory construction rule that Congress is presumed to intend that each word in a statute has meaning and is not superfluous. Matter of Nwozuzu, 24 I&N Dec. 609, 614 (BIA 2008). Legislative history also supports this interpretation. Congress s deletion of the definition of entry and replacement with a definition of admitted and admission was intended to strip those who entered without inspection from the benefits of the status 4 DHS is bound by the well-reasoned interpretation it argued in In re Orozco and now cannot take a different position. See, e.g., Salameda v. INS, 70 F.3d 447, 450 (7th Cir.1995) (citing Guillen-Garcia v. INS, 60 F.3d 340, 342 n. 4 (7th Cir.1995) ( An agency may not abandon an interpretation without an explanation ); Dashto v. INS, 59 F.3d 697, 703 (7th Cir.1995); Busboom Grain Co. v. ICC, 856 F.2d 790, 796 (7th Cir.1988)). 16

24 of having entered the country, and instead to subject them to removal under the inadmissibility grounds. See, e.g., H.R. Rep. No , at (1996). In line with this intent, it is reasonable to interpret the term lawful entry in INA 101(a)(13) as simply intended to clarify that the entry had to follow an inspection and authorization. The Second Circuit s decision in Emokah and analysis of other statutory provisions and the legislative history, all evidence the conclusion that the adjective lawful in INA 101(a)(13)(A) does not require that the alien have been admissible at the time of entry. Instead, the adjective lawful describes an entry effected at designated ports of entry as opposed to those that take place by evading inspection, which is consistent with this Board s precedent decision in Matter of Areguillin, supra. 2. The cases cited by the Board below do not support an interpretation of the phrase lawful entry as requiring a substantively lawful entry. In the decision below, the Board rejected the Respondent s argument that he had been admitted to the United States, and therefore could not be found inadmissible under 212(a)(9)(C), by citing to cases that hold that the admission of an alien in possession of a visa to which he is not entitled never confers a lawful status upon him. In re Aguilar- Cerda, at 3, n. 1 (BIA Aug. 25, 2008) (citing Monet v. INS, 791 F.2d 752 (9th Cir. 1986); Matter of Longstaff, 716 F.2d 1439 (5th Cir. 1983); Matter of Wong, 14 I&N Dec. 12 (BIA 1972), aff d Wong v. INS, 474 F.2d 739 (9th Cir. 197); Matter of Koloamatangi, 23 I&N Dec. 548 (BIA 2003)). These cases are inapposite. In each, the issue was whether the non-citizen had been admitted for lawful permanent residence. Thus, the question in those cases was not the one raised here: whether their entries constituted an admission into the U.S. under the terms of a relevant statute. Instead, the question was whether their admission to 17

25 lawful permanent residence conferred a lawful status on them when such status was granted in error. The phrase lawfully admitted for permanent residence is a term of art whose meaning is entirely distinct from the meaning of the word admitted as used in the provisions at issue here. Moreover, unlike the non-citizens in the cases cited, Respondent does not contend that he has a lawful status based upon his admission to the U.S. 3. The statutory definition of admitted under INA 101(a)(13)(A) is inapposite in interpreting the term admitted under INA 212(a)(9)(C), 237(a) and 245(a). As an alternative construction, should the Board decide that lawful does mean substantively lawful, then the definition in INA 101(a)(13) must be found to not apply to Congress s use of the term admitted in 212(a)(9)(C), 237(a)(1)(A), (H) and 245(a). As demonstrated in section A of this brief, to read admitted in 212(a)(9)(C), 237(a)(1)(A) and (H) as requiring a substantively lawful entry would render those sections meaningless, a result that cannot be countenanced. Similarly, to impose a substantively lawful entry to admitted in 212(a)(9)(C) or 245(a) but not to the same term in 237(a)(1)(A) would lead to an irreconcilable conflict between these sections, with the absurd result that a respondent could be found admitted for removal purposes but not for exemption from inadmissibility under the permanent bar or for relief from removal in the form of adjustment. This result also is untenable. Consequently, if 101(a)(13) is found to require a substantively lawful entry, then this definition must be found to not apply to the term s use in either 237(a), 212(a)(9) or 245(a), a result that is consistent with the statutory language and with Board precedent. 18

26 a. Defining the phrase inspected and admitted in INA 245(a) by reference to the definition of admission in INA 101(a)(13)(A) renders the term inspected redundant and superfluous. Section 101(a)(13)(A) of the INA defines the terms admission and admitted as the lawful entry of the alien into the United States after inspection and authorization by an immigration officer. INA 101(a)(13)(A) (emphasis added). This definition, therefore expressly incorporates the inspection of the alien as a precursor and required element of the alien s admission into the United States. See id. Moreover, precisely because the alien s inspection has already been incorporated into the definition of admitted found in INA 101(a)(13)(A), the application of this definition in interpreting the phrase inspected and admitted under INA 245(a) renders the latter part of that phrase wholly redundant, inoperative, and superfluous. Such an interpretation of the phrase inspected and admitted contravenes the longstanding principle of statutory construction that, if possible, every clause or word of a statute must be given effect. See United States v. Menasche, 348 U.S. 528, (1955). The Supreme Court is thus reluctant to treat statutory terms as surplusage in any setting. Duncan v. Walker, 533 U.S. 167, 174 (2001) (quoting Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U.S. 687, 698 (1995) (internal quotation marks and alterations omitted)). This principle of statutory construction counsels that the phrase inspected and admitted should not be interpreted in such a manner that the term inspected lacks any meaning. If this Board reaffirms its longstanding interpretation of the phrase inspected and admitted, as it articulated in Matter of Areguillin, 17 I&N Dec. 308 (BIA 1980), all words in the statute will have an operative effect. The Board in Matter of Areguillin 19

27 defined inspected as occurring when an alien physically presents him or herself for questioning and makes no knowing false claim to citizenship. 17 I&N Dec. at The Board accorded a distinct meaning to the term admitted. See id. at 310 n.6. It defined admitted as occurring when the inspecting officer communicates to the alien that he or she has determined that the alien is not inadmissible, for example, by allowing the alien to pass through the port of entry. 5 Id. As such, the continued employment of the Board s longstanding interpretation of the phrase inspected and admitted under INA 245(a) gives effect to every word in the statute and is therefore the interpretation favored by the principles of statutory construction. Had Congress intended to supplant the definition of admitted set forth in Matter of Areguillin, as that term applies to INA 245(a), with the new statutory definition of admitted in INA 101(a)(13), it would have concurrently revised INA 245(a) such that it no longer included both the word admission and the word inspection. 6 Instead, in enacting IIRIRA, Congress left 245(a) untouched when it revised numerous provisions of the INA, including the statutory definition of admission. See Akhtar v. Gonzales, 450 F.3d 587, 590 (5th Cir. 2006) ( The IIRIRA did not change [245(a)] ). When it introduced the new statutory definition of admitted in INA 101(a)(13)(A), it elected not to amend the phrase inspected and admitted to concord with the new definition. This legislative inaction... signals a conscious intent on the part of Congress to 5 Notably, in Matter of Areguillin, the Board expressly disagreed with the immigration judge, who found that the alien has to be lawfully or legally admitted to the United States in order to have been inspected and admitted under INA 245(a) and therefore eligible for adjustment of status. 17 I&N Dec. at Congress is presumed to have known, when it enacted IIRIRA in 1996, how the BIA had interpreted inspected and admitted in Matter of Areguillin and other published cases. See Goodyear Atomic Corp. v. Miller, 486 U.S. 174, (1988). 20

28 preserve the Board s prior interpretation of the phrase inspected and admitted. See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 401 (1982). For these reasons, applying the principles of statutory construction necessarily leads to the conclusion that the Board s interpretation of the phrase inspected and admitted in Matter of Areguillin remains valid post-iirira. b. This Board and federal courts have concluded that the definition of admitted does not apply to every use of the term throughout the INA. The terms admitted and admission appear repeatedly throughout the INA. 7 Even following enactment of INA 101(a)(13)(A) in IIRIRA, however, the courts of appeals and the Board have declined to adopt this provision as a single, uniform definition of these terms. See e.g., Matter of Rosas-Ramirez, 22 I&N Dec. 616, 623 (BIA 1999) (en banc) (stating that section 101(a)(13)(A)... does not set forth the sole and exclusive means by which admission to the United States may occur under the Act ). Instead, the courts have recognized that the interpretation of these terms must necessarily vary depending on the context in which they appear in the Act and in order to avoid absurd results. 7 See, e.g., INA 101(a)(4), (a)(6), (a)(13)(a)-(c), (a)(15)(l), (a)(15)(o), (a)(20), (a)(27)(a), (a)(48)(i); 209(a)(1); 210(a)(1); 211(a); 212(a)(1)(A)(ii), (a)(2)(d)(iv), (a)(4)(a), (a)(4)(c)-(d), (a)(5)(a)(i), (a)(5)(d), (a)(6)(a)-(c), (a)(6)(e)(ii), (a)(7)(a), (a)(7)(b), (a)(9)(a), (a)(9)(b)(i), (a)(9)(c), (g)(1), (h)-(l), (n)(1), (t)(1); 213; 214(a)(1), (b), (d), (e), (g)(7), (n)(2)(c), (o); 216(b)(1); 216A(a)(1); 217(a)(1); 221(f)-(h); 222(g); 223(a), (b); 233(a); 235(a)(1)-(5); 237(a)(1)(C)(i), (a)(1)(g)(i), (a)(1)(h), (a)(2)(a)(i)- (iii), (a)(2)(b)(i), (ii), (a)(2)(c), (a)(2)(e), (a)(4)(a); 240(a)(3), (c)(2)(a), (c)(3), (e)(2)(a); 240A(a)(2), (b)(3), (c)(2); 240B(a)(1)(B)(i), (a)(4); 240C; 241(c)(3)(B); 242(b)(4)(C); 245(a); 245A(a); 246(a), (b); 247(a); 248(a)(4); 249; 250; 272(a); 273(b); 274B(a)(3)(B); 276(a)(1); 287(d); 290(a); 291; 316(a); 317; 318; 319(a); 320(a)(3); 322(a)(5); 331(a); 334(b); 336(c); 337(a); 338; 344(d); 360(b), (c). 21

29 (i) The board has assigned varying meanings to the terms admitted and admission in interpreting other provisions of the act post-iirira. The Board s interpretation of the terms admitted and admission post-iirira has varied depending on the context of the statute in which they are found. For example, in Matter of Ayala-Arevalo, 22 I&N Dec. 398, 401 (BIA 1998), the Board found that the phrase lawfully admitted for permanent residence, as it relates to the waiver under INA 212(h), does not, either expressly or by implication, distinguish between those whose admission was lawful and those who were previously admitted for lawful permanent residence, but are subsequently determined to have been admitted in violation of the law. The Board found that reading such a distinction into the statute (1) would be arbitrary and capricious; and (2) would disregard the statute s context. See id. The Board thus does not require that the alien have entered the United States in accordance with the law, in order for him to have effected a lawful admission for permanent residence. Instead, the alien s admission into a lawful status, whether or not he was actually eligible to be admitted at the time of admission, was the deciding factor in determining whether he had been lawfully admitted for permanent residence. The following year, the Board again declined solely to adopt the 101(a)(13)(A) definition of admitted and admission in interpreting another provision of the Act. In Matter of Rosas-Ramirez, 22 I&N Dec. 616, (BIA 1999), the Board considered whether the respondent, who had entered the United States without inspection, then adjusted to lawful permanent resident status, and later committed an aggravated felony, could be deportable under INA 237(a)(2)(A)(iii) as an alien who was convicted of an aggravated felony at any time after admission. The Board addressed whether the 22

30 respondent had effected an admission under 237(a)(2)(A)(iii) when she adjusted to lawful permanent resident status. Id. at 617. The Board recognized that the respondent s adjustment of status does not meet the literal terms of the definition of admission or admitted contained in section 101(a)(13)(A), as it required neither a lawful entry, nor the inspection or authorization by an immigration officer. See id. The Board thus found that the 101(a)(13)(A) definition of admission did not adequately resolve the intended scope of admission in INA 237(a)(2)(A)(iii). Id. at 618. Instead, the Board looked to other provisions in the Act and to the context of amendments made by IIRIRA. See id. at In light of this context, the Board concluded that admission in INA 237(a)(2)(A)(iii) encompasses not only those aliens who are admitted at the time of entry under INA 101(a)(13)(A), but also those who are lawfully admitted for permanent residence at some time after entry. See id. at Because the respondent s adjustment of status constituted an admission, the Board found her deportable for having been convicted of an aggravated felony at any time after admission. Id. The BIA thus interpreted the term admission as having a meaning aside from a lawful entry, as required by INA 101(a)(13)(A). These Board decisions defined the term admission in various provisions in the Act to include meanings aside from that described in INA 101(a)(13)(A). They evidence that the phrase inspected and admitted referred to in INA 245(a) does not ipso facto have to be defined in reference to INA 101(a)(13)(A). (ii) The appellate courts have assigned varying meanings to the terms admitted and admission in other provisions of the act post-iirira. 23

31 The courts of appeals likewise have adopted varying definitions of the terms admitted and admission with respect to different provisions found in the Act. Similar to Matter of Rosas-Ramirez, supra, the Ninth Circuit in Ocampo Duran v. Ashcroft, analyzed the term admission in the context of INA 237(a)(2)(A)(iii). The court rejected the petitioner s definition of admission, which would have only included the definition in INA 101(a)(13)(A) and would have excluded adjustment of status, as overly-narrow. 254 F.3d 1133, 1134 (9th Cir. 2001). The Ninth Circuit reached this conclusion by citing to the definition of lawfully admitted contained in INA 101(a)(20) and by reasoning that the petitioner s definition would create a loophole in the removal laws for aliens who enter the country without inspection, adjust their status, and then commit aggravated felonies. See id. at The Ninth Circuit subsequently revisited Ocampo Duran in Shivaraman v. Ashcroft, 360 F.3d 1142 (9th Cir. 2004). In Shivaraman, the Ninth Circuit considered whether the petitioner was removable under 237(a)(2)(A)(i) for having been convicted of a crime involving moral turpitude committed within five years after the date of admission. Id. at Even though the Ninth Circuit relied upon 101(a)(13)(A) in concluding that the petitioner s admission date occurred when he initially entered on a student visa, it expressly declined to overrule Ocampo Duran and Matter of Rosas- Ramirez. Id. at Instead, the court found that these cases had been correctly decided so as to avoid the absurd results produced by interpreting admission exclusively with respect to INA 101(a)(13)(A). Id. at Accordingly, the Ninth Circuit again recognized that admission is not solely defined by 101(a)(13)(A) and that its definition varies depending on context and congressional intent. 24