Abraham Villalba Saldivar, AKA Abraham Saldivar, AKA Abraham Villalba, Petitioner,
Jefferson B. Sessions III, Attorney General, Respondent.
August 2, 2016
Submitted November 1, 2017 Pasadena, California
Petition for Review of an Order of the Board of Immigration
Appeals Agency No. A077-979-428.
Patrick F. Valdez (argued), Valdez Law Firm, Inglewood,
California, for Petitioner.
Sarkany (argued), Trial Attorney; Kiley Kane, Senior
Litigation Counsel; United States Department of Justice,
Washington, D.C.; for Respondent.
Before: Stephen Reinhardt, Alex Kozinski, and Kim McLane
Wardlaw, Circuit Judges.
panel granted Abraham Villalba Saldivar's petition for
review of the Board of Immigration Appeals' decision
holding that Saldivar was statutorily ineligible for
cancellation of removal for failure to establish seven years
continuous residence in the United States after being
"admitted in any status, " and vacated and
purposes of the appeal, the panel assumed that Saldivar was
"waved through" at a port of entry, and reaffirmed
that an alien is "admitted" when he presents
himself for inspection and is waved through a port of entry.
The panel held that the term "in any status"
plainly encompasses every status recognized by immigration
statutes, lawful or unlawful. The panel therefore concluded
that Saldivar was statutorily eligible for cancellation of
removal because he established continuous residence in the
United States for more than seven years after his admission.
Judge Kozinski wrote that the majority defies structure,
precedent and common sense by interpreting immigration status
to mean both lawful and unlawful status. Judge Kozinski
concluded that the only sensible way to read the term status
is to refer to one of several specific lawful categories, and
that the majority creates an intra-circuit conflict with
Lai Haw Wong v. INS, 474 F.2d 739, 742 (9th Cir.
1973), where the court explained that "mistaken
admission conferred no status, permanent resident or
otherwise." Further, Judge Kozinski wrote that if any
doubt remains about the meaning of status, the court should
defer under Chevron to the BIA's interpretation.
REINHARDT, Circuit Judge
Villalba Saldivar ("Saldivar"), a native and
citizen of Mexico, petitions for review of a decision by the
Board of Immigration Appeals ("BIA"). In an
unpublished, single-member decision, the BIA held that he was
statutorily ineligible for cancellation of removal because he
could not establish seven years of continuous residence in
the United States after having been "admitted in any
status." 8 U.S.C. § 1229b(a)(2). Saldivar was
"admitted" in 1993 when he was waved across the
border after inspection by an immigration officer. Therefore,
we must address only whether this "admission" was
"in any status." Because the phrase "in any
status" plainly encompasses every status recognized by
immigration statutes, lawful or unlawful, we hold that
Saldivar's procedurally regular admission in 1993 was an
admission in any status under § 1229b(a)(2) and grant
his petition for review.
AND PROCEDURAL BACKGROUND
entered the United States in 1993 as a ten-year-old child
when he was "waved through inspection" by an
officer at the port of entry in San Ysidro, California. In
2001, Saldivar married Desiree Luzano, a United States
citizen. The couple has three children, who are also U.S.
citizens. On October 11, 2006, Saldivar adjusted his status
to lawful permanent resident ("LPR"). About six
years later, on September 25 and 26, 2012, he was convicted
in California Superior Court of possession of methamphetamine
and possession of paraphernalia used for smoking a controlled
November 1, 2012, the U.S. Department of Homeland Security
served Saldivar with a Notice to Appear, alleging that he was
removable pursuant to 8 U.S.C. § 1227(a)(2)(B)(i) as a
noncitizen convicted of a controlled substance violation. At
Saldivar's hearing, the Immigration Judge
("IJ") found that the charge in the Notice to
Appear was proven by clear and convincing evidence, rendering
applied for cancellation of removal pursuant to 8 U.S.C.
§ 1229b(a). Before conducting a hearing on the
application for cancellation of removal, the IJ ordered the
parties to submit briefs addressing whether Saldivar was
statutorily eligible for that form of relief. Based on the
written submissions, and without taking any evidence or
testimony as to whether Saldivar was in fact "waved
through the border" in 1993, the IJ determined that he
was ineligible for cancellation of removal as a matter of
law. He reasoned that even if Saldivar had been waved through
in 1993, he still could not establish the requisite seven
years of continuous residence in the United States after
being "admitted in any status" under §
1229b(a)(2). According to the IJ, Saldivar's
"procedurally correct inspection and admission" in
1993 could not be considered an admission "in any
status" because "mistaken admissions do not confer
a status, either permanent or otherwise." Nor could
Saldivar rely on his LPR status to satisfy the seven-year
continuous residency requirement: his controlled substance
violation cut off his period of continuous residence
approximately six years after he adjusted his status to LPR.
affirmed the IJ's decision. It rejected Saldivar's
argument that he was "admitted in any status" in
1993 when he was waved across the border. Relying on In
re Blancas-Lara, 23 I. & N. Dec. 458, 460 (BIA
2002), the BIA concluded that an "admission with
procedural regularity, " such as being waved through the
border by an immigration officer, "is not tantamount to
admission 'in any status, ' either immigrant or
nonimmigrant." Therefore, it held, Saldivar could not
establish continuous residence for seven years after ...