When Entry of an Inadmissible Person Qualifies as "Admission"

 

Introduction: When is the Entry of an Inadmissible Alien an “Admission”?

Admission in immigration lawImmigration law defines an alien who is “admitted” to the United States as an alien who made a lawful entry after inspection or authorization by an immigration officer. However, this leaves open the question of what happens if an alien is procedurally admitted (as in, the alien enters after inspection and authorization by an immigration officer), but was actually inadmissible at the time of entry. The question is important for aliens who were allowed to enter the United States after inspection and authorization, but were in fact inadmissible at the time of entry.

Administrative bodies and federal courts have widely held that “admission” relies upon procedural regularity rather than whether the entry was legal or the alien was admissible. Furthermore, if a person is admitted as an LPR under false pretenses, he or she will be considered to have been admitted as an LPR so long as the admission was procedurally regular. However, these rules do not apply when an alien gains entry due to a false claim of U.S. citizenship. In this article, we will look at the case-law about these issues regarding admission, and also how the questions apply to reinstatement of removal.

The Definition of “Admission” and “Seeking Admission” in Immigration Law

Section 101(a)(13)(A) of the Immigration and Nationality Act [codified as 8 U.S.C. 1101(a)(13)(A)] [PDF version] defines “admission” and “admitted” to mean:

  • “with respect to an alien, the lawful entry of the alien into the United States after inspection or authorization by an immigration officer.”
  • 101(a)(13)(B) specifically excludes aliens who have been paroled into the United States or alien crewmen who have been permitted to temporarily land in the United States.
  • 101(a)(13)(C) states that an alien admitted for lawful permanent residence (LPR) status shall not be regarded as seeking admission into the United States unless he or she:
    • i. has abandoned or relinquished that status,
    • ii. has been absent from the United States for a continuous period in excess of 180 days,
    • iii. has engaged in illegal activity after having departed the United States,
    • iv. has departed from the United States while in the midst of removal or extradition proceedings,
    • v. has committed an offense that renders him or her inadmissible under criminal and related grounds as defined in section 212(a)(2), unless he or she has been granted relief under section 212(h) or section 240A(a), or
    • vi. is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the United States after inspection or authorization by an immigration officer.

When is the Entry of an Inadmissible Alien an Admission?

The Board of Immigration Appeals (BIA) and federal courts have had to address whether a person who is inspected and authorized to enter, but was in fact inadmissible at the time of entry, should be considered “admitted.” This distinction has a significant effect on adjustment of status eligibility as well as eligibility for other immigration benefits and relief.

The primary question is whether “admission” relies upon procedural regularity alone (that is, nothing more than “inspection and authorization”) or whether it relies upon the underlying legality of the entry.

Under the first reading- which both the BIA and multiple circuit courts have accepted — the underlying legality of the entry is not (with a limited exception) relevant to admission.

If “admission” did rely upon the entry being legal, “inspection and authorization” would be necessary, but not sufficient, for admission.

Administrative and Judicial Precedents

The BIA and federal courts have consistently held, with limited exceptions, that so long as the process was procedurally legal, the alien is considered to have been admitted. With regard to nonimmigrants, this means that the only issue with regard to “admission” is whether the alien was inspected and authorized to enter. Circuit courts have applied the same reasoning to persons who are “admitted” as LPRs when the LPR admission is not legal. However, it is important to note that admission under false pretenses neither entitles one to immigration benefits nor does it cure inadmissibility. For example, if an alien is admitted but was in fact inadmissible, he or she will accrue unlawful presence so long as he or she is present in the United States with an outstanding ground of inadmissibility. Furthermore, as we will see in the two federal circuit court cases that we discuss, being considered to be admitted as an LPR may in fact have a negative effect on a person's ability to apply for certain waivers of inadmissibility.

Board of Immigration Appeals Precedents

The Board of Immigration Appeals has issued several decisions on the status of persons who were inadmissible at the time of admission. The two cases that we will look at have to do with persons who argued that they had been admitted in order to apply for adjustment of status.

In 1980, the BIA held in Matter of Areguillin [PDF version] that a woman who was allowed to enter by an immigration officer despite having no entry documents was admitted.1 The BIA set the standard that so long as the person presents him or herself for inspection and does not make a false claim of U.S. citizenship, he or she will be considered to have been admission. The BIA stated that “admission occurs when the inspecting officer communicates to the applicant that he has determined that the applicant is not inadmissible.”

The BIA reaffirmed Matter of Areguillin it in an important 2010 decision, Matter of Quilantan [PDF version].2 In this case, a woman from Mexico was waived through the border by an immigration officer despite having no valid documents to enter. The BIA reaffirmed Matter of Areguillin in full, emphasizing that “admission” refers to procedural regularity and not to whether the admission person was legally admissible.

Circuit Court Precedents

Circuit courts have also weighed in on these issues, generally reaching the same conclusions as the BIA. However, in each of the three cases that we will look at in this section, the petitioner argued that he or she was not admitted (in the first case not admitted as a nonimmigrant, in the latter two cases not admitted as lawful permanent residents) in order to establish eligibility for immigration relief.

In 2008, the Second Circuit held in Emokah v. Mukasey [PDF version] that a woman who obtained a B-2 (B2) visa through fraud or misrepresentation had been “admitted” into the United States because she entered after inspection and authorization by an immigration officer.3 The decision noted, “The 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.”

Circuit Courts with Regard to Unlawful “Admission” as LPR

Emokah v. Mukasey [PDF version] was cited favorably by the Ninth Circuit in 2010 in Hing Sum v. Holder [PDF version], which concerned whether a man who had been admitted as an LPR should be considered “admitted” as an LPR even though his LPR admission was not legal.4 If he was considered “admitted as an LPR,” he would be ineligible for a waiver of inadmissibility under section 212(h) [due to having an aggravated felony conviction after admission]. The Ninth Circuit noted that congress clearly contemplated that non-citizens may be admitted despite being inadmissible at the time of admission as evinced by section 237(a)(1)(H) of the INA, which allows limited waivers for non-citizens who are “inadmissible at the time of admission” based upon fraud or misrepresentation. Furthermore, the Ninth Circuit noted that if “admitted” referred only to lawful admission, non-citizens who had perpetrated fraud or misrepresentation to gain admission to the United States, or who were otherwise inadmissible, would not be subject to any grounds of deportability found in section 237(a) of the INA [codified as 8 U.S.C. 1227(a)] [PDF version].

The Third Circuit supported the above readings of the “admission” statute in 2012 in Martinez v. Attorney General of U.S [PDF version].5 The case also concerned a petitioner who was arguing that he had not been “admitted as an LPR.” The Third Circuit held that “admission” refers to procedural regularity rather than to legality of the admission.

Special Case: Entry Under False Claim of U.S. Citizenship

In 2013, the BIA limited Matter of Quilantan [PDF version] with its decision in Matter of Pinzon [PDF version].6 In Matter of Pinzon, the BIA held that an alien who enters the United States by falsely claiming U.S. citizenship is not considered to have been inspected by an immigration officer, and thus cannot be considered to have been admitted under section 101(a)(13)(A). The BIA noted in Matter of Pinzon that because an immigration officer is not empowered to inspect a U.S. citizen, a person who enters under the false claim of U.S. citizenship “effectively eludes the procedural regularity of admission.”

This decision was consistent with the 1975 Supreme Court decision in Reid v. INS [PDF version], which held that entry under a false claim of citizenship constitutes EWI.7

Distinguishing the Precedents with Regard to Reinstatement of Removal

The statute regarding reinstatement of removal presents an interesting question with regard to procedurally legal entries that are otherwise illegal. In order for a prior removal order to be reinstated, an alien must commit an “illegal reentry.”8

In a 2011 case argued before the Tenth Circuit, Cordova-Soto v. Holder [PDF version], a woman who would have otherwise been subject to reinstatement of removal argued that based upon Matter of Quilantan [PDF version], she had not reentered the United States illegally because her admission had been procedurally regular.9 However, the Eleventh Circuit was unpersuaded, and limited the BIA's holding in Matter of Quilantan. It held that a procedurally regular entry that is otherwise illegal is an “illegal reentry” for purpose of reinstatement of removal. The Eleventh Circuit held that the issue with regard to reinstatement of removal is not whether the alien was “admitted,” but whether the entry was legal.

In a similar vein, the Ninth Circuit cited favorably Cordova-Soto v. Holder [PDF version] and distinguished its holding in Hing Sum v. Holder [PDF version] with regard to reinstatement of removal in its 2013 decision, Tamayo-Tamayo v. Holder [PDF version].10

Fifth Circuit also adopted this position in 2014 in an unpublished decision, Avalos Martinez v. Johnson [PDF version].11

Conclusion: Admission of Inadmissible Aliens

With the exception of persons who enter under a false claim of U.S. citizenship, “admission” refers to procedural regularity rather than to the underlying legality of the entry. These same principles have been applied to persons who gain admission as LPRs despite not being legally entitled to LPR status. The rules are important because whether an alien is considered to be “admitted” affects his or her eligibility for adjustment of status and many other forms of immigration relief. The same applies to whether an alien was “admitted” as an LPR.

However, circuit courts have found that these issues are do not matter in the reinstatement of removal context. Because reinstatement of removal triggers upon unlawful reentry, it is irrelevant whether the unlawful reentry was procedurally regular such that it constituted an “admission.”

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  1. Matter of Areguillin, 17 I&N Dec 308 (BIA 1980)
  2. Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010)
  3. Emokah v. Mukasey, 523 F.3d 110, 118 (2d Cir. 2008)
  4. Hing Sum v. Holder, 602 F.3d 1092 (9th Cir. 2010)
  5. Martinez v. Attorney General of the U.S., 693 F.3d 408 (2012)
  6. Matter of Pinzon, 26 I&N Dec. 189 (BIA 2013)
  7. Reid v. INS, 420 U.S. 619, 624 (1975)
  8. INA § 241(a)(5)
  9. Cordova-Soto v. Holder, 659 F.3d 1029 (10th Cir. 2011)
  10. Tamayo-Tamayo v. Holder, 725 F.3d 950 (9th Cir. 2013)
  11. Avalos-Martinez v. Johnson, 560 Fed.Appx., 385, (5th Cir. 2014)

Resources and Materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: ALIA Publications, 2014. 1139-40, Print. Treatises & Primers.